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Consumer Bankruptcy Law and Practice: 7.4 Signing, Verification, and Filing

Once all of the forms are prepared and reviewed, they must be signed by the attorney of record, the debtor(s), or both, depending on the form, and some forms must be verified by the debtor(s). In appropriate circumstances, a petition may be signed and filed by another on behalf of a debtor pursuant to a power of attorney or as next friend.313

Consumer Bankruptcy Law and Practice: Form 183 Motion to Avoid Lien or Non-Possessory, Non-Purchase Money Security Interest

[Caption: Official Form 416A]

Motion to Avoid Lien or Non-Possessory, Non-Purchase Money Security Interest on Exempt Personal Property

COMES NOW the debtor and debtor-in-possession [debtor], by and through [attorney for debtor], and moves to avoid any judicial liens and/or non-possessory, non-purchase money security interests on the debtor’s exempt personal property, pursuant to 11 U.S.C. § 522(f) (Motion), and in support thereof asserts:

Consumer Bankruptcy Law and Practice: Form 184 Motion to Modify Confirmed Plan

[Caption: Official Form 416A]

Motion to Modify Confirmed Plan547

COMES NOW the debtor and debtor-in-possession [debtor], by and through [attorney for debtor], and moves to modify the confirmed plan, pursuant to 11 U.S.C. § 1229 (Motion), and in support thereof asserts:

1. On [filing date] (Filing Date), [debtor] filed a Petition under chapter 12 of the United States Bankruptcy Code, 11 U.S.C. §§ 1201–1231.

Consumer Credit Regulation: Introduction

This appendix summarizes state Retail Installment Sales Acts (RISAs). These statutes typically cover installment sales of goods and services, but some regulate certain purchase-money consumer loans as well. Some states have a RISA that applies exclusively to installment sales contracts for motor vehicles or manufactured homes, and some have more than one RISA. Many RISAs include provisions for retail charge accounts. All these types of RISAs, for each state, are included in this appendix.

Consumer Credit Regulation: Rhode Island

R.I. Gen. Laws §§ 6-27-1 to 6-27-11 (Truth in Lending and Retail Selling Act).

Scope: Sales of property or services involving credit. Revolving credit. § 6-27-3.

Licensure requirements: None.

Credit terms: 18% simple interest per year. Does not apply to transactions in which the finance charge does not exceed $10. § 6-27-4(a).

Restrictions on points or prepaid interest: None.

Restrictions on length of term: None.

Repossessions: 14.2.9.2 Rebate of Third-Party Charges

Leases may include within the monthly lease payment certain third party-charges that should be rebated on early termination, such as service contracts, credit insurance, and GAP insurance. These third-party charges are earned over the full term of the lease, and early termination should result in a partial rebate.

Repossessions: 14.2.9.3 Extra Penalties

Leases may include early termination penalties in addition to charges based on the adjusted lease balance or remaining payments methods, such as three times the monthly lease payment.

Repossessions: 14.2.9.4 Taxes Not Paid to Taxing Authority

Lessor early termination formulas are unreasonable if they charge for taxes not owed to taxing authorities. Under the remaining payments method, the consumer should owe for remaining pre-tax payments only, and not for taxes included in those payments.213

Repossessions: 14.2.9.5.1 When lease entered into prior to active duty military service

The Servicemembers Civil Relief Act gives a servicemember the option of terminating a vehicle lease without penalty upon entering active duty.214 This right applies if, after executing the lease, the lessee then enters active duty under a call or order for 180 days or more.215 Such a termination of a lease also terminates the obligations of a servicemember’s dependent under the lease.216

Repossessions: 14.2.9.5.2 When lease entered into while on active duty military service

A servicemember has the right to cancel without penalty a vehicle lease executed during a period of active duty if the lessee receives military orders requiring a permanent change of station outside the continental United States or to deploy with a military unit for 180 days or more.223 The continental United States is defined as the forty-eight contiguous states and the District of Columbia.224 The servicemember then has the same right to terminate the lease without penalty as if t

Repossessions: 14.2.9.6 Limits on Consumer Liability After Vehicle Loss

When a vehicle is stolen or seriously damaged in a wreck, insurance will pay the vehicle’s value to the lessor. To many consumers’ surprise, the lessor may still seek an early termination charge from the consumer. From the lessor’s point of view, the lease has been terminated early, the realized value is the insurance payment, and the consumer is liable for an early termination charge as computed under the lease’s early termination formula.

Repossessions: 14.2.10.1 UCC Article 2A

Section 2A-528 specifies a formula for computing the lessor’s default remedies.236 UCC § 2A-504(1) allows the lessor instead to use an early termination formula that is “reasonable in light of the then anticipated harm caused by the default or other act or omission.”237 UCC § 2A-504(2) specifies that if the early termination charge does not meet this reasonability standard, than the lessor’s sole remedy is as provided in section 2A-528.

Repossessions: 14.2.10.2 Federal Consumer Leasing Act

An unreasonable early termination or default charge violates the federal Consumer Leasing Act (CLA) in two different ways. The CLA requires disclosure of reasonable early termination and default charges.246 If the lessor discloses an unreasonable early termination or default charge, that is a disclosure violation, leading to CLA statutory and actual damages and attorney fees.

The CLA also has a substantive provision prohibiting unreasonable early termination and default charges:

Unfair and Deceptive Acts and Practices: 2.2.11.1 Introduction

This section analyzes the geographical scope of state UDAP statutes. A first question is whether the statute applies to residents of other states. A second question is whether the statute applies to transactions that occur in whole or in part in a different state. These questions are often intertwined, as transactions with out-of-state consumers often occur in whole or in part in another state.

Consumer Bankruptcy Law and Practice: Form 37 Debtor’s Objection to Landlord’s Certification of Illegal Drug Use Relating to Exception to Automatic Stay

[Caption: Official Form 416A]

Debtor’s Objection to Landlord’s Certification of Illegal Drug Use Pursuant to Section 362(m)(2)(A)

[Debtor], the Debtor in the above-captioned case, hereby objects to the certification filed by [landlord] pursuant to 11 U.S.C. 362(b)(23):

1. On [date], the debtor filed a petition under chapter 7 of the Bankruptcy Code, and indicated on the petition that [landlord] had obtained a judgment for possession of his residence.

Consumer Bankruptcy Law and Practice: Form 38 Answer to Motion for Relief from Automatic Stay Raising Avoidability of Transfer to Plaintiff

[Editor’s Note.142] [Caption: Official Form 416A]

Answer to Motion of [name] Mortgage Company for Relief from Automatic Stay

1–4. Admitted.

5–9. It is admitted that Movant filed a complaint in mortgage foreclosure, obtained a “snap” default judgment, and that a sheriff sale was held as indicated. It is also admitted that the property was sold to the Movant. The remaining factual allegations are denied.

Consumer Bankruptcy Law and Practice: Form 42 Motion for Continuation of Automatic Stay in Case Filed Within One Year After Dismissal of Prior Bankruptcy Case

[Editor’s Note.154] [Caption: Official Form 416A]

Motion for Continuation of Automatic Stay

The Debtor hereby moves this Court, pursuant to section 362(c)(3)(B), for an order continuing the automatic stay provided under section 362(a) as to all creditors [or insert names if limited to particular creditors]. In support of this motion, the Debtor states as follows:

1. The Debtor filed a petition under chapter 13 on [date].

Consumer Bankruptcy Law and Practice: Form 43 Motion to Invoke Automatic Stay in Case Filed Within One Year After Dismissal of Two Prior Bankruptcy Cases

[Editor’s Note.158] [Caption: Official Form 416A]

Motion to Invoke Automatic Stay

The Debtor hereby moves this Court, pursuant to section 362(c)(3)(B), for an order invoking the automatic stay provided under section 362(a) as to all creditors. In support of this motion, the Debtor states as follows:

1. The Debtor filed a petition under chapter 13 on [date].