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Bankruptcy Basics: Form 38 Statement of Information Required by 11 U.S.C. § 341

[Editor’s Note.80]

BANKRUPTCY INFORMATION SHEET

BANKRUPTCY LAW IS A FEDERAL LAW. THIS SHEET GIVES YOU SOME GENERAL INFORMATION ABOUT WHAT HAPPENS IN A BANKRUPTCY CASE. THE INFORMATION HERE IS NOT COMPLETE. YOU MAY NEED LEGAL ADVICE.

WHEN YOU FILE BANKRUPTCY

You can choose the kind of bankruptcy that best meets your needs (provided you meet certain qualifications):

Bankruptcy Basics: Form 40 Agreement for Redemption of Property

[Editor’s Note.83]

[Caption: Official Form 416A]

Agreement for Redemption of Property

It is hereby agreed, by and between the Debtor in this bankruptcy case and [creditor], holder of a purchase money security interest in the Debtor’s automobile, that:

1. The value of the said automobile is $1000.

2. The security interest of [creditor] is valid and enforceable despite the Debtor’s bankruptcy case.

Bankruptcy Basics: Form 44 Order Avoiding Lien on Residential Real Estate

[Caption: Official Form 416A]

Order Avoiding Lien

AND NOW, this [date] day of [month], [year], upon the Debtors’ motion to avoid and cancel a judicial lien which impairs an exemption of the Debtors,

It is hereby ORDERED AND DECREED that the judicial lien held by [creditor], in and on Debtors’ residential real estate at [address], entered of record at June Term, 2011, No. [number] be and hereby is canceled.

Fair Credit Reporting: 10.6.2 State Deceptive Practices Statutes

Every state has a deceptive practices statute that, with few exceptions, provides important consumer remedies for marketplace misconduct.244 Remedies, depending on the state, might include attorney fees, actual damages, treble damages, punitive damages, and/or statutory damages for deceptive conduct. In addition, many of these statutes also prohibit unfair or unconscionable conduct, and not just deceptive conduct.

Fair Credit Reporting: 10.6.3 State Identity Theft Laws

Many states have enacted criminal and civil laws that target identity theft.256 As discussed below in detail in § 10.7, infra, however, the FCRA specifically preempts states from imposing any requirement or prohibition with respect to the “conduct required” by many of the provisions of the FCRA aimed at preventing and reme

Fair Credit Reporting: 10.7.2.1 A Roadmap

The general FCRA rule is that state law is not preempted unless it is inconsistent with the FCRA or unless it is explicitly preempted by the FCRA’s express preemption provision, section 1681t(b).289 Section 1681t(b) states that “[n]o requirement or prohibition may be imposed under the laws of any State” with respect to five different areas:290

Fair Credit Reporting: 10.7.2.2 General Principles of Interpretation

When Congress employs express preemption in a federal act, the scope of the clause depends on its language, along with that of any savings clause in the act.309 When examining an express preemption clause, a court must focus on the plain wording of the clause, because that wording is “the best evidence of Congress’ pre-emptive intent.”310

Fair Credit Reporting: 10.7.2.3 Applicability of Pre-FACTA Case Law to Current FCRA Preemption Provisions

The FCRA’s explicit preemption provisions were due to expire on January 1, 2004,319 but the Fair and Accurate Credit Transactions Act of 2003 (FACTA) removed this sunset clause, thus retaining the earlier preemption language. The FACTA amendments to the FCRA also added new language whereby additional FCRA provisions preempt state law. Case law prior to the FACTA amendments will still be good precedent for the preemption language that has been retained unchanged, but only partially relevant to the new preemption language.

Bankruptcy Basics: Form 46 Order Avoiding Non-Possessory, Non-Purchase Money Security Interest

[Caption: Official Form 416A]

Order Avoiding Non-Possessory, Non-Purchase Money Security Interest

AND NOW, this [date] day of [month], [year], upon the motion to avoid and cancel a security interest which impaired an exemption of the Debtors,

It is hereby ORDERED and DECREED that the non-possessory, non-purchase money security of [creditor] in Debtors’ household and personal goods be, and hereby is, declared null and void.

Date:

[signature]

Bankruptcy Basics: Form 48 Motion for Protective Order Pursuant to Rule 9037 Permitting Redaction and Restricting Public Access to Documents Filed with the Court

[Editor’s Note.104]

[Caption: Official Form 416A]

Debtor’s Motion to Permit Redaction of Filed Documents and Limit Remote Electronic Access

Debtor seeks relief under 11 U.S.C. § 107(b)(2), Fed. R. Civ. P. 5.2, Fed. R. Bankr. P. 9018, and Fed. R. Bankr. P. 9037(d) to protect herself from harm related to public distribution of her private medical information. In support of this motion, the Debtor avers as follows:

Bankruptcy Basics: Form 51 Complaint To Determine Dischargeability of Court Costs Pursuant to 11 U.S.C. § 523(a)(7)

[Editor’s Note.110]

[Caption: Official Form 416D]

DEBTOR’S COMPLAINT TO DETERMINE DISCHARGEABILITY PURSUANT TO 11 U.S.C. § 523(a)(7)

Preliminary Statement

1. This is an adversary proceeding brought under the Bankruptcy Code, 11 U.S.C. § 523(a)(7), to determine the dischargeability of judicial costs that were assessed against the debtor as compensation for actual pecuniary loss.