How to Reopen Bankruptcy-Motion?

Debtor’s Motion to Reopen Case

The Debtor, by counsel, requests that the above-captioned case be reopened pursuant to 11 U.S.C. § 350(b) in order to accord relief to the Debtor and in support thereof avers as follows:

1. The Debtor filed bankruptcy pursuant to chapter 7 of the Bankruptcy Code on May 1, 2005, and received a discharge pursuant to 11 U.S.C. § 727 on September 10, 2005.

2. Among the debts listed in the Debtor’s petition and discharged in this bankruptcy case was a debt in the amount of $550 to [hospital].

3. [Hospital] received notice of the discharge on or about September 10, 2005.

4. In January, 2006, the Debtor began receiving calls from [collection agency] which represented that it was collecting the [hospital] debt.

5. The Debtor informed [collection agency] of the discharge by telephone and by letter, but nevertheless continued to receive collection calls and letters.

6. The Debtor has prepared an action against [hospital] and [collection agency] for contempt for violation of the discharge injunction applicable to this case by virtue of 11 U.S.C. § 524(a). A copy of that action is attached hereto and labeled Exhibit A [omitted].

WHEREFORE, the Debtor requests that this case be reopened to allow the Debtor to file and prosecute an action against [hospital] and [collection agency] for violation of the discharge injunction.

Date: [signature]
Attorney for Debtor
[This article is purely for educational purposes]


What Are The Nevada Laws For Bankruptcy Exemptions?

Has state opted out of federal bankruptcy exemptions?
Yes. Nev. Rev. Stat. § 21.090.

Is opt out limited to residents or domiciliaries of the state? Yes. Nev. Rev. Stat. § 21.090: ‘‘Any exemptions specified in [§ 522(d)],
do not apply to property owned by a resident of this State. . . .’’

Do state’s exemptions have extraterritorial application?Homestead: Uncertain.
Personal property: Uncertain.

Wages: Nev. Rev. Stat. §§ 21.090, 31.295 to 31.298.
Scope: Earnings.
Amount: Garnishment may not exceed the lesser of 25% of disposable earnings for the workweek or the amount by which
disposable earnings that week exceed 50 times the federal minimum wage.

Survival after payment/deposit:
Yes. Earnings are defined to include compensation received by the judgment debtor, in the possession of the judgment debtor, held in accounts in a bank or any other financial institution, or, in the case of a receivable, compensation that is due the judgment debtor.
Not specified in garnishment statute.
Homestead: Nev. Rev. Stat. §§ 21.090, 21.095, 115.005, 115.010, 115.040.
$550,000 in either land and a dwelling or a mobile home, subject to certain liens; land held in spendthrift trust for debtor is exempt. Unlimited exemption if ‘‘allodial title’’ has been established. (Nevada residents can acquire ‘‘allodial title’’ to their land by buying out the property tax right from the government. Then the landowner does not have to pay property tax on the land.) The primary dwelling, including a mobile home, and land may not be executed upon for a medical bill during the lifetime of the debtor, debtor’s spouse, a joint tenant who was a joint tenant at the time judgment was entered, or debtor’s disabled dependent adult child, or during the minority of any child of debtor. A 2007 amendment added an exemption for sums reasonably deposited with a landlord, to secure the rental or lease of debtor’s primary residence (except not exempt as to landlord’s claims for rent).
Procedural requirements:
Procedure available for filing declaration of homestead. Exemption available even without declaration. Once declaration is filed, spouse must join in any encumbrance or sale.
Special provisions:
None specified.
Waiver: Spouse must join in conveyance or encumbrance of declared homestead.
Tangible personal property:
Nev. Rev. Stat. §§ 21.080, 21.090, 21.100.
Household goods: $12,000 necessary household goods, furnishings, electronics, wearing apparel, other personal effects and yard
Motor vehicles: $15,000, no limit if specially equipped for disabled
debtor or dependent.
Tools of trade:
$10,000 tools of trade; $4500 mining equipment; $4500 farm equipment.
Clothing and jewelry:
Jewelry is included in the $5000 wildcard exemption.
Miscellaneous and wildcard:
$5000 in private library, works of art, musical instruments and jewelry, all family pictures and keepsakes; health aids; property held in a spendthrift trust; uniforms debtor is legally required to keep, one gun, a collection of metal bearing ores, geological specimens, art curiosities or paleontological remains if the debtor catalogues them and the catalogue is kept near the collection for the free inspection of all visitors; coin collections are not exempt. $1000 in any property, including accounts in a financial institution.
Waiver: Not specified in exemption statute.
Benefits, retirement plans, insurance, judgments, and other intangibles: Nev. Rev. Stat. §§ 21.080, 21.090, 21.100.
Public benefits:
Social Security benefits, including without limitation, retirement, survivors, SSI and disability. See Nev. Rev. Stat. § 422.291 (assistance awarded pursuant to public welfare administration laws is exempt). Earned income credit or any similar credit pursuant to state law.
Pensions, retirement plans and annuities:
Up to $500,000 (present value) in tax-qualified retirement plan.
Insurance, judgments or other compensation for injury: Money or benefits in any manner growing out of life insurance, if premium not more than $15,000 per year (for higher premium, the proportion that $15,000 bears to the premium paid); $16,500 personal injury judgment; wrongful death judgment for person on whom debtor was dependent; compensation for loss of future earnings of debtor or person on whom debtor was dependent, so far as needed for support; criminal restitution.
Bank accounts:
Not specified in exemption statute.
Alimony, child support:
Court-ordered family support.
Survival after payment or deposit:
Not specified in exemption statute.

What is an adversary proceedings?

Bankruptcy can be very contested and when there is a contested matters, it gives rise to complaint which needs to be adjudicated by bankruptcy court. Contested matters, if they are smaller in nature, can be handled by motion. There is no fee required for motion and a quick hearing can be done by the bankruptcy judge. However, if the contested matters is serious, it can be adjudicated via filing of an adversary proceedings. An adversary proceeding is a separate civil proceeding within the bankruptcy proceeding. Here, the plaintiff files a separate complaint, along with a filing fee, and serves the named defendant via summons and service of summons executed and filed with the court. The responding party or the defendant responds via an answer. The proceedings results in a judgment which can be entered and executed against the losing party. Again, adversary proceedings are handled much more formally and modeled on the federal rules of civil procedure.

How many types of Adversary Proceedings?
Rule 7001 handles matters regarding adversary proceedings. Any proceeding to recover money or property requires filing of an adversary proceeding.

– Any proceeding to decide the validity, priority, or extent of either a lien or some other interest in property requires an adversary proceeding.
– Any attempt to either have the debtor denied a discharge or have the debtor’s discharge revoked requires an adversary proceeding.
– Any attempt to obtain approval to involuntarily sell the interests of both the debtor and a non-debtor co-owner in property free and clear of the co-owner’s interest requires an adversary proceedings.
– Any proceedings to determine whether a debt is dischargeable requires filing of an adversary proceeding.
– A proceeding to obtain a declaratory judgment with respect to any of the matters which goes to the core of bankruptcy requires filing of an adversary proceeding.

The Complaint
One can say that an adversary proceeding is inherent in a trial. It is a civil litigation conducted within the context of a bankruptcy case. An adversary proceeding is commenced with the filing of a complaint. The complaint must be accompanied by a filing fee.

The Summons and Other Pleadings The summons are issued by the clerk and the plaintiff is required to serve the summons issued by the clerk and a copy of the complaint shall be served on all the defendants. The summons must be served or mailed within 14 days of the time it is issued or a new summons must be obtained.

The Answer in an adversary proceedings should be ready in the same way as an answer in any other federal civil proceedings.

Bank of America to pay 108 millions fine

If it can be said that Countrywide single handedly triggered this foreclosure fiasco, it would not a fictitious statement. Countrywide was more liberal in awarding loan to undeserving people without checking any of their creditworthiness compared to any other financial institution. We have hundred of thousands of home foreclosure situations throughout USA and no one is found to be blamed and punished. Finally, Bank of America is found culpable and rightly punished. This bank has not learnt anything from Countrywide’s fiasco, and still doing lots of bad things including a very slow loan modification process. Following is an interesting article to read about all these matters

What happen if you omit to file Official Form 23?

There is a significant change in bankruptcy cases filed after October 2005 which states that individuals must, after filing their case, take a Financial Management Course and file Official Form 23 along with the certificate of completion to receive a discharge in any bankruptcy case. The financial management (sometimes also referred to as the debt management) course is different from the pre-filing credit counseling course which must be filed along with the initial bankruptcy petition. These courses must be taken from an institution approved by the Office of the United States Trustee. Most of the debtors and that includes some of the top most production law mills in Las Vegas forgets to file, and resulting in the case being dismissed.

Also, many debtors who file bankruptcy cases without the assistance of a bankruptcy attorney eventually receive a shocking notice in the mail which states: “Case closed without discharge. Debtor has not filed a Financial Management Course Certificate proving compliance with the required instructional course requirement for discharge.” The debtors had done everything else required of them except for taking the required financial management course and filing the required Form 23. All that time and work, and no discharge? However, no need to become despondent. If you had filed chapter 7 by yourself, probably you did not realize how important is this. Most of the petition preparer does not even know the existence of such form. That is the sole reason, I always caution the “do it yourself” people to hire an attorney. It is money well spent.

YOU CAN FIX THIS: IT’S NOT TOO LATE and you can file Petition to Reopen the case and request for discharge.

Pursuant to 11 U.S.C. 350, and Federal Rule of Bankruptcy Procedure 5010 you can file a motion to reopen your case and, if granted, take and file the required financial management course certificate. The best way to accomplish this is to hire a bankruptcy attorney for this purpose to make sure the facts of your case are presented properly and maximize your chances to have the Motion granted and to get your discharge entered. All you need is to repay the filing fee one more time. Judge do not waive this refiling fee.

There is a court mandated filing fee for the Motion to Reopen for the purpose of filing official form 23 (presently $260) and attorney’s fees vary, but this is not the time for penny saving. You already had hurt yourself and possibly more to come in this filing. Also, you need to get a court hearing. Just filing itself would not be enough. You need to present the case, and of course finish the debt counseling class and fill out form 23. It is important and there cannot be any discharge without this filing.

Short Sale and Bankruptcy?

Many clients asks me this very important question and truthfully my answer has always been the same. Short sale is a bad idea but it has good ramification. It can prolong your foreclosure process while you can legally stay free in your home and not obligated (at least legally) to pay your mortgage payments. There are some potential problems with short sales.

First, a Chapter 7 discharges the underlying mortgage debt, as well your personal obligation for your second mortgages, HELOCs, equity lines, etc.) A liquidation bankruptcy would discharge all of your debts including the principal balance as well as HELOC.

Second, if you’re in bankruptcy, you can’t do a short sale without Court approval. This often means that you have to pay your lawyer more money to do something that has no financial benefit for you. Again, a short sale may be rejected by the bankruptcy as a collusive transaction.

Finally, even though you’re in bankruptcy, the lender may still issue a 1099-C. This means that you will need to file a Form 982 to avoid having to pay income taxes on the forgiven debt.
It is a good idea to negotiate that the lender would not come after you and file a deficiency judgement.