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Consumer Bankruptcy Law and Practice: 8.3.5 Annual Statements of Income and Expenditures in Chapter 13 Cases

A chapter 13 debtor may also be required to file annual statements of income and expenditures, but only if they are requested by the court, the United States trustee, or a party in interest.80 While some trustees make such requests as a matter of course, the language of section 521(f) suggests that requests are only appropriate if there is a particularized need for the information in a specific case.81 Otherwise, the statute would have simpl

Consumer Bankruptcy Law and Practice: 8.3.7.1 Redemption

Another important right that the debtor may exercise against secured creditors in a chapter 7 case is the right to redeem certain personal property by paying the lienholder the value of the property.92 As with lien avoidance, it is probably easiest to attempt a stipulated settlement regarding redemption prior to filing for judicial enforcement. Of course, such a settlement must involve the lienholder’s agreement on the value of the property.

Consumer Bankruptcy Law and Practice: 8.3.9 Proceedings Regarding Dischargeability of Particular Debts

On occasion, it may be advisable for strategic reasons for the debtor to seek a determination regarding the dischargeability of a particular debt.120 Such action can resolve the issue of whether a debt is being discharged once and for all, in the forum of the debtor’s choice, and the debtor may obtain specific injunctive relief as well.121 For example, if a particular tax is to be discharged, having the bankruptcy court specifically order the taxing authority to cease collection attempts may be

Consumer Bankruptcy Law and Practice: 8.3.10 Objections to Claims of Creditors

In those cases in which creditors do file claims, and particularly when they file secured or priority claims, an objection to a claim may be crucial to the debtor’s case. Such an objection may mean the difference between success and failure of a chapter 13 plan or the reduction of a secured debt by thousands of dollars.126 An objection may allege that the claim has not been timely filed or that it is improper or excessive for some other reason.127

Consumer Bankruptcy Law and Practice: 8.3.12 Retaining Nonexempt Property in Chapter 7 Cases

In consumer chapter 7 bankruptcies, although the trustee pretty clearly has a right to take possession of totally nonexempt property prior to the section 341 meeting of creditors,145 this turnover rarely occurs. All parties involved usually recognize that when such property is of more than nominal value the simplest method of disposition is to sell it back to the debtor, who may purchase it with exempt assets, assets that are not property of the estate, or postpetition income.

Consumer Bankruptcy Law and Practice: 8.3.13.1 Plan Payments

Pursuant to 11 U.S.C. § 1326(a), the debtor must commence making payments pursuant to their plan within thirty days after the petition is filed.151 Payments to the trustee must be retained by the trustee until the plan is confirmed or confirmation is denied. If the plan is confirmed, the payments are distributed in accordance with the plan.152

Consumer Bankruptcy Law and Practice: 8.3.13.2 Adequate Protection Payments and Payments to Personal Property Lessors

Section 1326(a)(1) also imposes a separate requirement that a chapter 13 debtor must make adequate protection payments directly to a creditor holding an allowed claim secured by personal property to the extent that it is “attributable to the purchase of such property by the debtor for that portion of the obligation that becomes due after the order for relief.” Similarly, regular payments must be paid to lessors on personal property leases (primarily automobile leases).

Consumer Bankruptcy Law and Practice: 8.3.13.3 Graduated Plan Payments

In some cases, the first months of a chapter 13 plan create a significant hardship for a debtor because of the confluence of required utility deposits, installment payments on the filing fee, and the need to commence plan payments and sometimes adequate protection payments. One potential solution is to propose a plan featuring graduated payments to the trustee, with lower payments in the first several months and higher payments thereafter.

Consumer Bankruptcy Law and Practice: 12.1 Introduction

No part of the Bankruptcy Code caused more controversy or confusion in its early days than the greatly revised chapter 13. In drafting that chapter, Congress made an explicit effort to encourage greater use of its provisions, which had been rarely employed in most parts of the country under the prior Bankruptcy Act. Even where it had been used, practices under the old Chapter XIII varied widely among judicial districts, with substantial deviations from the strict terms of the Act.

Unfair and Deceptive Acts and Practices: 11.4.2.8.10 Future losses; consequences of security breaches

Some courts have found the injury requirement not met where all or part of the damage is expected in the future.435 Similarly, courts have dismissed claims based on security breaches on the ground that the time and expense for credit monitoring to prevent potential future identity theft was too remote and speculative.436 Since the security breach itself often necessitates monitoring, even if no identity theft ever actually occurs, these decisions take an unnecessarily cramped reading of the stat

Consumer Bankruptcy Law and Practice: 14.1 Introduction

Under the Bankruptcy Act of 1898, consumer bankruptcy cases were almost uniformly handled in a routine manner by all parties involved, more as matters of administrative processing than as proceedings involving legal issues to be litigated. Few contested disputes arose in such cases, and most of those that did arise were resolved not in the bankruptcy courts, but rather in state courts, because of the limited jurisdiction of the bankruptcy referees under the Act.

Consumer Bankruptcy Law and Practice: 14.2.1 A Brief History

In 1978, when Congress passed the Bankruptcy Reform Act, bankruptcy jurisdiction was identified as a primary area in need of reform. For the previous eighty years, under the Bankruptcy Act of 1898, few topics had been the subject of more litigation. The system that existed was one of piecemeal jurisdiction, and in larger corporate cases simultaneous litigation concerning the same bankruptcy debtor was often conducted in numerous courts. The bankruptcy courts had only limited powers, most of them tied to jurisdiction over the debtor’s property.

Consumer Bankruptcy Law and Practice: 14.2.3 The Bankruptcy Case

The bankruptcy case, that is the case under title 11 initiated by the filing of a petition under chapters 7, 9, 11, 12, 13, or 15 of that title, continues to be within the province of the bankruptcy court for entry of the orders that are essential for bankruptcy relief.38 The bankruptcy court may enter as final orders: the order for relief under each chapter;39 orders distributing property of the estate and setting aside exemptions; discharge orders; and other similar orders in the main bankruptcy c

Consumer Bankruptcy Law and Practice: 14.2.4.3 Court’s Determination of Jurisdictional Questions

The first question that must be answered in determining jurisdiction over a proceeding is whether there is any federal bankruptcy jurisdiction over the matter at all.52 Some proceedings may be so remote from the bankruptcy that they will have no impact on the bankruptcy case and cannot be considered even to be related to it.53 In such instances, the bankruptcy court may never hear the proceeding, and a district court may hear it only if there is some nonbankruptcy basis for federal jurisdiction.