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Fair Debt Collection: 14.11.2.2 Private Parties

With respect to private parties, the existence of state action depends on whether the conduct causing the deprivation of the federal right is “fairly attributable” to the state.618 Willful participation in joint activity with the state or its agents is sufficient to make a private party a state actor.619

Fair Debt Collection: 14.11.2.3 The State As Creditor

When the state is the creditor, its seizure of the debtor’s property, through intercept or other means, without adequate notice and an opportunity to be heard may deprive the debtor of due process.637 The same is true as to imprisonment of a consumer for failure to pay a fine without an opportunity to show the inability to pay.638

Fair Debt Collection: 14.11.3 What Protections Due Process Requires

If there is state action, the Fourteenth Amendment prohibits the deprivation of liberty or property without due process of law. Even a mere possessory interest in property invokes procedural due process protections.644 However, there must be an actual deprivation of liberty or property before due process rights attach.645

Fair Debt Collection: 14.11.4 Fourth Amendment Claims

The Fourth Amendment right to be free from unreasonable searches and seizures applies in the civil as well as the criminal context and can be the basis of a section 1983 complaint where the state actors have either seized property or intruded upon private property.654 If a consumer abandons personal property, or turns it over to a creditor, in response to an officer’s threat of unlawful arrest, this is a seizure.655 If state officials enter a home or its immediate surroundings to search for and

Fair Debt Collection: 14.11.5 Immunity; Municipal Liability

State officials can claim immunity from liability under section 1983 if their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known.663 In addition, some actors such as judicial officials have absolute immunity.664 Private parties cannot claim qualified good faith immunity,665 but some courts have allowed them to raise good faith as an affirmative defense.

Consumer Bankruptcy Law and Practice: 2011 Advisory Committee Note on Form 1

The form is amended to implement Rule 1004.2. Subdivision (a) of that rule requires a chapter 15 petition to state the country of the debtor’s center of main interests and to identify each country in which a foreign proceeding by, regarding, or against the debtor is pending. A box is added to the first page of the form for this purpose. Minor stylistic changes are also made.

Consumer Bankruptcy Law and Practice: 2008 Advisory Committee Note on Form 1

Paragraph 3 of Exhibit D is amended to delete any reference to a requirement that a debtor file a motion with the court to obtain an order approving a request for the postponement of the debtor’s obligation to obtain a credit counseling briefing prior to the commencement of the case. The paragraph immediately following numbered paragraph 3 is also amended to reflect the deletion of the need for a separate motion beyond the completion of the certification itself.

Consumer Bankruptcy Law and Practice: 2005–2007 Advisory Committee Note on Form 1

The form is amended to implement amendments to the Bankruptcy Code contained in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, 119 Stat. 23 (April 20, 2005)(“BAPCPA”). The period for which the debtor must provide all names used and information about any prior bankruptcy cases is now eight years to match the required time between the granting of discharges to the same debtor in § 727(a)(8) of the Code as amended in 2005.

Consumer Bankruptcy Law and Practice: About the Form

Because other forms now just indicate the last four digits of the Social Security number, debtors must submit Form 121 (formerly Form 21) on which they provide their full Social Security number, or indicate that they do not have a Social Security number. Bankruptcy Rule 1007(f). If a joint case is filed, both debtors must fill out the form. The statement is submitted by the debtor with the petition and schedules but is not made a part of the official court file. The form ensures that the debtor’s full Social Security number is not available to the general public or over the Internet.

Consumer Bankruptcy Law and Practice: About the Form

Official Form 103A (formerly Form 3A) is an application and order to pay filing fees in installments, and may be filed pursuant to 28 U.S.C. § 1930(a) and Federal Rule of Bankruptcy Procedure 1006(b). Local rules may require that this application be filed in duplicate. No filing fee need be paid at the time the petition is filed if the petition is accompanied by this form. No more than four installments may be proposed, to be paid over no more than 120 days after the petition is filed. However, upon debtor’s application, this time may be extended for cause to 180 days.

Consumer Bankruptcy Law and Practice: Annotations to Completed Sample Form 103A

1. Official Form 103A is an application and order to pay filing fees in installments, and may be filed pursuant to 28 U.S.C. § 1930(a) and Federal Rule of Bankruptcy Procedure 1006(b). Although it is common to pay the first installment at the time of filing, nothing in the Code or Rules requires any payment when the petition is filed. No more than four installments may be proposed, to be paid over no more than 120 days after the petition is filed. However, upon debtor’s application, this time may be extended for cause to 180 days.

Consumer Bankruptcy Law and Practice: Official Form 103A Instructions

Application for Individuals to Pay the Filing Fee in Installments (Official Form 103A)

If you cannot afford to pay the full filing fee when you first file for bankruptcy, you may pay the fee in installments. However, in most cases, you must pay the entire fee within 120 days after you file, and the court must approve your payment timetable. Your debts will not be discharged until you pay your entire fee.

Do not file this form if you can afford to pay your full fee when you file.

Consumer Bankruptcy Law and Practice: 2013 Advisory Committee Note on Form 3A

This form, which applies only in cases of individual debtors, has been revised as part of the Forms Modernization Project, making the form easier to read and, as a result, likely to generate more complete and accurate responses. Also, the declaration and signature section for a non-attorney bankruptcy petition preparer (BPP) has been removed as unnecessary. The same declaration, required under 11 U.S.C. § 110, is contained in Official Form 19. That form must be completed and signed by the BPP, and filed with each document for filing prepared by a BPP.

Consumer Bankruptcy Law and Practice: 2005–2007 Advisory Committee Note on Form 3A

The form is amended to direct the debtor to state that, until the filing fee is paid in full, the debtor will not make any additional payment or transfer any additional property to an attorney or any other person for services in connection with the case. The declaration and certification by a non-attorney bankruptcy petition preparer in the form are amended to include material mandated by § 110 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).