Skip to main content

Search

Bankruptcy Basics: Creditors.

One source of information that should not be overlooked is the creditor to whom a debt is or may be owed. Creditors are usually quick to respond to inquiries regarding the balance due and the security interests that they have. A sample letter that may be sent to creditors is provided in Form 2, Appendix C, infra.

Bankruptcy Basics: Payment Advices.

Section 521(a)(1)(B)(iv) requires debtors, unless the court orders otherwise, to file copies of all pay stubs (referred to as “payment advices”) or other evidence of payment received from an employer within sixty days before the filing of the petition. Some districts have adopted local rules which instruct debtors to provide these payment advices to the trustee, rather than filing them with the court.

Bankruptcy Basics: Pleadings and Other Forms Contained in This Appendix

  • Form 1 Pre-Filing Notification to Creditors of Representation
  • Form 2 Notification to Creditor Seeking Information As to Account
  • Form 3 Letter to Client Requesting More Information
  • Form 4 Initial Consultation Agreement and Acknowledgment of Receipt of Disclosures
  • Form 5 Notice Required by 11 U.S.C. § 527(a)
  • Form 6 Notice Required by 11 U.S.C.

Bankruptcy Basics: Incapacity, Disability, or Active Military Duty.

A waiver of the briefing requirement may be requested if the debtor is disabled or incapacitated. However, the law sets out a rather strict standard on what it means to be disabled or incapacitated for purposes of the counseling waiver, so debtors may have difficulty convincing a court to grant a waiver on these grounds. The debtor may also request a waiver if the debtor is on active military duty in a combat zone.

Bankruptcy Basics: Exigent Circumstances.

If the debtor needs to file bankruptcy in an emergency to stop a home foreclosure, automobile repossession, wage attachment, or some other “exigent circumstance,” a temporary waiver of the counseling requirement may be requested.

Bankruptcy Basics: Payment in Installments

If the debtor is not eligible for a chapter 7 filing fee waiver or has filed a chapter 13 case, the filing fee may be paid in up to four installments over a period of 120 days (or up to 180 days with court permission). Bankruptcy Rule 1006(b) provides that the petition may be accompanied by an application signed by the debtor stating that the debtor is unable to pay the filing fee except in installments. The form for this application is Official Form 103A.

Bankruptcy Basics: B.1.1 Introduction

This Appendix provides guidance in completing the official bankruptcy forms relevant to chapter 7 consumer bankruptcies, in effect as of July 2023. Practitioners should also check whether their local bankruptcy courts have altered the official forms.

Bankruptcy Basics: B.1.4.2 Converting Documents to Adobe Acrobat (PDF) Format

Sample pleadings found in Appendix C, infra, are available in Microsoft Word format (to facilitate adapting the pleading for a particular case) as companion materials to this guide under “Pleadings and Discovery.” These pleadings, and any other documents to be filed electronically and not already in Adobe Acrobat (PDF) format, must be converted to PDF format.

Bankruptcy Basics: Form 5 Notice Required by 11 U.S.C. § 527(a)

[Editor’s Note.8]

Notice to Individual Consumer Debtor Under Section 527(a) of the Bankruptcy Code

In accordance with section 527(a)(2) of the Bankruptcy Code, be advised that:

1. All information you are required to provide with a bankruptcy petition and during a bankruptcy case must be complete, accurate, and truthful.

Bankruptcy Basics: Form 12 Motion to Excuse Filing of Lost or Unavailable Payment Advices

[Editor’s Note.16]

[Caption: Official Form 416A]

Motion to Excuse Complete Filing of Payment Advices

Debtor, by his counsel, hereby moves that he be excused from filing all of the payment advices received from his employer within sixty (60) days of the petition. In support of this motion, Debtor states:

1. Debtor filed a voluntary petition under chapter 7 of the Bankruptcy Code on [date].

Bankruptcy Basics: Counseling Certification

In the vast majority of cases the certification that the debtor received the prepetition credit counseling from an approved agency will be filed along with the petition. Occasionally there may be some problem in obtaining the certification before the petition is filed even though the debtor completed the briefing prepetition. In that situation the certification should be filed no later than fourteen days after the petition date. If additional time is needed a motion for extension of time under Bankruptcy Rule 1007(c) should be filed before the fourteen-day period expires.

Bankruptcy Basics: Filing Fee

If the debtor has filed a motion to waive the filing fee or to pay the fee in installments, the attorney will want to confirm that the court has acted on the motion. In some cases the attorney may need to provide additional information requested by the court, or appear at a hearing. If a motion to pay the filing fee in installments is granted by the court, the order will be sent by the court to the debtor and to debtor’s counsel.

Bankruptcy Basics: Required Documents

Soon after the case is filed the attorney should wrap up any loose ends on the required initial documents. If additional information is needed from the debtor to complete the schedules and statements a letter similar to that provided in Form 3, Appendix C, infra, should be sent.

Bankruptcy Basics: Amendments

Despite using best efforts to obtain complete and accurate information in preparing the schedules, it is not uncommon for errors or omissions to be discovered after the documents are filed, sometimes in response to questions posed to the debtor at the meeting of creditors. If an amendment is needed Bankruptcy Rule 1009 provides that the debtor may amend the initial papers as a matter of course at any time before the case is closed. The procedure is a simple one involving the filing of an amended document verified by the debtor.

Bankruptcy Basics: Attending the Meeting

The debtor (both debtors in a joint case) must attend the meeting of creditors. The meeting of creditors is conducted by the panel trustee or the chapter 13 standing trustee. It is not usually held at the bankruptcy court but rather at a separate government or office building. As a result of the COVID-19 pandemic, on August 28, 2020, the United States Trustee Program established a policy requiring that meetings of creditors take place by telephone or video appearance until sixty days after the expiration of the COVID-19 national emergency.

Bankruptcy Basics: Enforcing the Discharge

Before the attorney’s client file is closed it is very important that the debtor be advised about the scope and effect of the discharge. This advice should include a discussion of the protections from discrimination by government agencies, private employers, and student loan providers. See Chapter 3, supra. The debtor should be reminded of the specific debts, if any, that have not been discharged.

Bankruptcy Basics: Consequences of the Audit

The failure of the debtor to satisfactorily explain a material misstatement in an audit or to satisfactorily explain a failure to make necessary papers or property available for inspection can be grounds for revocation of a discharge under section 727(d)(4).

Bankruptcy Basics: Form 1 Pre-Filing Notification to Creditors of Representation

[Editor’s Note.5]

Re: [debtor]

Dear [name]:

Please be advised that this office represents the above-captioned individual(s) with respect to their alleged debt to [creditor]. We are presently preparing a bankruptcy petition that will shortly be filed.

We are requesting that all further communications concerning this matter be directed to us. If you have any questions concerning the above, please feel free to call me. Thank you for your cooperation in this matter.