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Consumer Bankruptcy Law and Practice: 16.6 Services Provided by Petition Preparers and Other Non-Attorneys

It is not surprising, given the tremendous need for bankruptcy relief among many low-income debtors and the lack of pro bono or affordable bankruptcy attorneys in some areas, that various types of non-attorney operations have sprung up that purport to offer debtors assistance in filing bankruptcy cases. Typically dubbed “typing services,” “document preparation services,” or “independent paralegals,” these entities advertise that they can solve debt problems and prevent evictions and foreclosures without the necessity of an attorney.

Consumer Bankruptcy Law and Practice: 16.7.2.1 Costs and Attorney Fees for Successful Section 707(b) Motions—§ 707(b)(4)(A)

Under section 707(b)(4)(A) of the Bankruptcy Code, costs and attorney fees incurred in prosecuting a successful section 707(b) motion to dismiss the case may be assessed against the debtor’s attorney, but only in certain circumstances. Fees and costs may be awarded only if a debtor’s attorney violates Rule 9011 of the Federal Rules of Bankruptcy Procedure in filing the bankruptcy case itself.256 Moreover, the procedures contained in Bankruptcy Rule 9011 for awarding costs and fees must be followed.

Consumer Bankruptcy Law and Practice: 16.7.2.4 Attorney Certification As to Schedules—§ 707(b)(4)(D)

Section 707(b)(4)(D) provides that the signature of an attorney for the debtor also certifies that the attorney has no knowledge, after an inquiry, that the schedules are incorrect.269 This standard is a pretty low one, requiring actual knowledge, not just a belief or suspicion, that the schedules are inaccurate. It requires an inquiry, which should be no greater than for other pleadings, perhaps less, because it does not use the word “reasonable.”

Consumer Bankruptcy Law and Practice: 16.8.2 Restrictions on Debt Relief Agencies

Mostly, the debt relief agency restrictions prohibit practices already considered improper, such as failing to perform services as promised, making untrue or misleading statements, or advising clients to make statements that an agency should know are misleading.280 Although the latter restriction, by itself, might appear to be a strict liability provision for any untrue or misleading statements, the section’s remedy provisions speak of negligence or intentional misconduct,281 for which remedies

Consumer Bankruptcy Law and Practice: 16.8.3.3 Required Statement About Bankruptcy Assistance Services

A debt relief agency must also provide the assisted person with a statement about “bankruptcy assistance services.”297 This statement must be provided at the time the notice under section 527(a)(1) is given, but no time requirement is set in section 527(a)(1), which refers to the clerk’s notice under section 342(b)(1). The clerk is required to give this notice before commencement of the case.

Consumer Bankruptcy Law and Practice: 16.8.3.4 Disclosures Required of Non-Attorney Agencies That Prepare Bankruptcy Documents

Debt relief agencies, but not attorneys who prepare bankruptcy petitions, schedules, and statements for debtors, are required to provide clear and conspicuous written notice to an assisted person giving “reasonably sufficient information” on how to provide the information required to file for bankruptcy.300 To the extent that the debt relief agency does not provide the required information itself, the notice must explain such unsettled questions of law as:

Consumer Bankruptcy Law and Practice: 16.8.4 Written Contract Under Section 528(a)

A debt relief agency must execute a written contract with an assisted person within five days after the date the agency first provides bankruptcy assistance to the assisted person, and prior to filing a petition.302 Fulfilling this obligation may be impossible because the assisted person may not wish to sign a contract, and obviously there is no way to force the assisted person to sign. In such cases, the debt relief agency’s obligation should be satisfied by tendering the contract.

Consumer Bankruptcy Law and Practice: 16.8.5 Advertising Requirements Under Section 528(a)

If a debt relief agency advertises bankruptcy assistance services or the benefits of bankruptcy it must disclose that the services or benefits are with respect to bankruptcy relief under title 11.309 The agency must also clearly and conspicuously use the following statement, or a substantially similar statement, in such advertisements: “We are a debt relief agency. We help people file for relief under the Bankruptcy Code.”310

Consumer Arbitration Agreements: 4.10.1 TILA Rescission and Other Three-Day Rights to Cancel

The Truth in Lending Act (TILA) provides a right to rescind a special subset of credit agreements by sending a rescission notice within three days.294 In addition, a statute in every state and a Federal Trade Commission rule provide a three-day right to cancel certain door-to-door sales.295 There are other instances of state and federal laws providing consumers with the right to cancel contracts under specified conditions.

Access to Utility Service: 2.2.4.1 Generally

Sometimes a utility seeks to deny or terminate service to a customer for a debt that the customer has no connection with or requires as a condition of service that the customer pay the preexisting debt that is owed by a person who lives with the customer.

Access to Utility Service: 14.1 Overview

As described in Chapter 2, supra, municipal utilities and rural electric cooperatives (RECs) are regulated in a different manner from investor-owned utility companies. Municipal utilities and RECs are owned and operated by a governmental body. A public utility commission (PUC) usually has less ability to regulate the actions of a municipal utility or REC.

Access to Utility Service: 6.2.1 Right to Notice

Notice requirements for proposed disconnections are commonly found in state statutes, public utility commission (PUC) rules and regulations, tariffs, and municipal utility procedures.28 This notice is constitutionally mandated for municipal utilities,29 and may be mandated for rural electric cooperatives (RECs),30 but is generally not constitutionally mandated for investor-owned utilities.31 In the majority o

Access to Utility Service: 6.2.3 Notice Content

State statutes and commission regulations often impose very specific requirements about what to include in a termination notice. These requirements overlap substantially with what courts have held due process standards to require.48 Below is an example of the detailed information that may be required in a termination notice:

Access to Utility Service: 10.2.7 State Universal Service Programs

States opting to establish statewide universal service programs cannot set up programs that are inconsistent with the FCC’s rules. Furthermore, states that opt to expand the types of services covered in a universal service plan must also find a specific, predictable, and sufficient mechanism to support the program that does not rely on or burden the federal program. Pursuant to 47 U.S.C. § 254(f):

Access to Utility Service: 10.3.3 Level of Lifeline Support for Consumers

The level of federal Lifeline assistance for eligible consumers used to vary by state and by carrier, but that is no longer the case. The 2012 Lifeline Reform Order and the 2016 Lifeline Modernization Order have standardized the benefit amount as well as other aspects of the program—such as eligibility criteria—making the Lifeline program more uniform from state to state.

Access to Utility Service: 10.3.5.1 Generally

The 2016 Lifeline Modernization Order standardized and streamlined the eligibility criteria for Lifeline. As of December 2, 2016, consumers applying for Lifeline are eligible for the Lifeline benefit if they:

Access to Utility Service: 10.4.3.3 Procedures for Resolving a Slamming Dispute

If the consumer receives one bill for local and telecommunications service, they should first contact the local telephone company to notify it of the unauthorized switch in companies and that the “change charges” for the unauthorized switch, if any, should be removed from the bill. When reporting the slam to any of the phone companies involved, the customer must identify the authorized phone company and the unauthorized phone company.250