How Chapter 13 Bankruptcy Works
A chapter 13 bankruptcy case begins with the filing of a petition with the
bankruptcy court serving the area where the debtor has a domicile or residence. Unless the
court orders otherwise, the debtor also shall file with the court (1) schedules of assets
and liabilities, (2) a schedule of current income and expenditures, (3) a schedule of
executory contracts and unexpired leases, and (4) a statement of financial affairs.
Bankruptcy Rule 1007(b). A husband and wife may file a joint petition or individual
petitions. 11 U.S.C. § 302(a). All of the required
Official Bankruptcy Forms are included within the 1ClickBankruptcy.com Software
Program.
As of January 1st 2016, the courts are required to charge a $235 case filing fee and a $75 administrative fee (a total of $310) for a chapter 13 bankruptcy. The fees should be paid to the clerk of the court upon filing or may, with the court's permission, be paid in installments through the plan. 28 U.S.C. §
1930(a); Bankruptcy Rule 1006(b); Bankruptcy Court Miscellaneous Fee Schedule, Item
8. Rule 1006(b) limits to four the number of installments for the filing fee. The final
installment shall be payable not later than 120 days after filing the petition. For cause
shown, the court may extend the time of any installment, provided that the last
installment is paid not later than 180 days after the filing of the petition. Bankruptcy
Rule 1006(b). If a joint petition is filed, only one filing fee and one administrative fee
are charged.
In order to complete the Official Bankruptcy Forms which make up the
petition, statement of financial affairs, and schedules, the debtor will need to compile
the following information:
- A list of all creditors and the amounts and nature of their claims;
- The source, amount, and frequency of the debtor's income;
- A list of all of the debtor's property; and
- A detailed list of the debtor's monthly living expenses, i.e.,
food,
clothing, shelter, utilities, taxes, transportation, medicine, etc.
When a husband and wife file a joint petition or each spouse files an
individual petition, the above detailed data must be gathered for both spouses. So that
financial responsibilities can be accurately assessed when only one spouse files, the
income and expenses of the non-filing spouse should be included in the debtor's schedules
and statement of financial affairs.
Upon the filing of the petition, an impartial trustee is appointed to
administer the case. 11 U.S.C. § 1302. If the number of cases so
warrants, the United States trustee may appoint a standing trustee to serve in all chapter
13 cases in a district. 28 U.S.C. § 586(b). A primary role of the chapter 13
trustee is to serve as a disbursing agent, collecting payments from debtor's and making
distributions to creditors. 11 U.S.C. § 1302.
The filing of the chapter 13 bankruptcy petition "automatically
stays" most collection actions against the debtor or the debtor's property.
11 U.S.C.
§ 362. As long as the "stay" is in effect, creditors generally cannot initiate
or continue any lawsuits, wage garnishment, or even telephone calls demanding payments.
Creditors receive notice of the filing of the chapter 13 bankruptcy petition from the clerk or the trustee.
Further, a chapter 13 bankruptcy contains a special automatic stay provision applicable to creditors.
Specifically, after the commencement of a chapter 13 bankruptcy case, unless the bankruptcy court authorizes otherwise, a creditor may not seek to collect a "consumer debt" from any individual who is liable with the debtor. 11 U.S.C. § 1301. Consumer debts are those incurred for consumer, as opposed to business, needs.
By virtue of the automatic stay, an individual debtor faced with a
threatened foreclosure of the mortgage on his or her principal residence can prevent an
immediate foreclosure by filing a chapter 13 bankruptcy petition. Chapter 13 then affords the debtor
a right to cure defaults on long-term home mortgage debts by bringing the payments current over a reasonable period of time. The debtor is permitted to cure a default with respect to a lien on the debtor's principal residence up until the completion of a foreclosure
sale under state law. 11 U.S.C. § 1322(c).
The debtor must file a plan of repayment with the petition or within
fifteen days thereafter, unless extended by the court for cause. Bankruptcy Rule
3015. The
chapter 13 plan must provide for the full payment of all claims entitled to
priority under section 507 (unless the
holder of a particular claim agrees to different treatment of the claim); if the
plan classifies claims, provide the same treatment for each claim within each class; and
provide for the submission of such portion of the debtor's future income to the
supervision of the trustee as is necessary for the execution of the plan. 11 U.S.C. §
1322. Other plan provisions are permissive. Id. Plans, which must be approved by
the court, provide for payments of fixed amounts to the trustee on a regular basis,
typically biweekly or monthly. The trustee then distributes the funds to creditors
according to the terms of the plan, which may offer creditors less than full payment on
their claims.
If the trustee or a creditor with an unsecured claim objects to confirmation of the plan, the debtor is obligated to pay the amount of
the claim or commit to the proposed plan all projected "disposable income"
during the period in which the plan is in effect. 11 U.S.C. § 1325(b). Disposable income
is defined as income not reasonably necessary for the maintenance or support of the debtor
or dependents. If the debtor operates a business, disposable income is defined as
excluding those amounts which are necessary for the payment of ordinary operating
expenses. 11 U.S.C. § 1325(b)(2)(A) and (B).
A meeting of creditors is held in every case, during which the debtor
is examined under oath. It is usually held 20 to 50 days after the petition is filed. If
the United States trustee or bankruptcy administrator designates a place for the meeting which is not regularly staffed by the United
States trustee or bankruptcy administrator, the meeting may be held no more than 60 days
after the order for relief. Bankruptcy Rule 2003(a). The debtor must attend the
meeting, at which creditors may appear and ask questions regarding the debtor's financial
affairs and the proposed terms of the plan. 11 U.S.C. § 343. If a husband and wife have
filed a joint petition, they both must attend the creditors meeting.
The trustee will
also attend the meeting and question the debtor on the same matters. In order to preserve
their independent judgment, bankruptcy judges are prohibited from attending. 11 U.S.C. §
341(c). If there are problems with the plan, they are typically resolved during or shortly
after the creditors' meeting. Generally, problems may be avoided if the petition and plan
are complete and accurate and the trustee has been consulted prior to the meeting.
In a chapter 13 bankruptcy case, unsecured creditors who have claims against the
debtor must file their claims with the court within 90 days after the first date set
for
the meeting of creditors. Bankruptcy Rule 3002(c). A governmental unit, however, may file
a proof of claim until the expiration of 180 days from the date the case is filed.
11 U.S.C. § 502(b)(9).
After the meeting of creditors is concluded, the bankruptcy judge must
determine at a confirmation hearing whether the plan is feasible and meets the standards
for confirmation set forth in the Bankruptcy Code. 11 U.S.C. §§ 1324 and
1325.
Creditors, who will receive 25 days' notice of the hearing, may object to confirmation.
While a variety of objections may be made, the most frequent ones are that payments
offered under the plan are less than creditors would receive if the debtor's assets were
liquidated or that the debtor's plan does not commit all of the debtor's projected
disposable income for the period of the plan.
Within thirty days after the filing of the plan, even if the plan has not yet been approved by the court, the debtor must start making payments to the trustee.
11 U.S.C. § 1326(a)(1). If the plan is confirmed by the bankruptcy judge, the chapter 13 trustee commences distribution of the funds received in accordance with the plan "as
soon as practicable." 11 U.S.C. § 1326(a)(2). If the plan is not confirmed, the
debtor has a right to file a modified plan. 11 U.S.C. § 1323. The debtor also has a right to convert the case to a liquidation case under chapter 7. 11 U.S.C. § 1307. If the plan or modified plan is not confirmed and the case is dismissed, the court may authorize the trustee to retain a specified amount for costs, but all other funds paid to the trustee
are returned to the debtor. 11 U.S.C. § 1326(a)(2).
On occasion, changed circumstances will affect a debtor's ability to
make plan payments, a creditor may object or threaten to object to a plan, or a debtor may
inadvertently have failed to list all creditors. In such instances, the plan may be
modified either before or after confirmation. 11 U.S.C. §§ 1323 & 1329. Modification
after confirmation is not limited to an initiative by the debtor, but may be at the
request of the trustee or an unsecured creditor. 11 U.S.C. § 1329(a).
The provisions of a confirmed plan are binding on the debtor and each
creditor. 11 U.S.C. § 1327. Once the court confirms the plan, it is the responsibility of
the debtor to make the plan succeed. The debtor must make regular payments to the trustee,
which will require adjustment to living on a fixed budget for a prolonged period.
Alternatively, the debtor's employer can withhold the amount of the payment from
the debtor's paycheck and transmit it to the chapter 13 bankruptcy trustee. Furthermore, while
confirmation of the plan entitles the debtor to retain property as long as payments are
made, the debtor may not incur any significant new credit obligations without consulting
the trustee, as such credit obligations may have an impact upon the execution of the plan.
11 U.S.C. §§ 1305(c), 1322(a)(1) & 1327.
A debtor may consent to the deduction of the plan payments from the
debtor's paycheck. Experience has shown that this practice increases the likelihood that
payments will be made on time and that the plan will be completed. In any event, failure
to make the payments in accordance with the confirmed plan may result in dismissal of the
case or its conversion to a liquidation case by filing a chapter 7 bankruptcy.
11
U.S.C. § 1307(c).
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