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 is a Chapter 7 Discharge?

Chapter 7 Discharge releases individual debtors from personal liability for most debts and prevents the creditors owed those debts from taking any collection actions against the debtor. Because a chapter 7 discharge is subject to many exceptions, though, debtors should consult competent legal counsel before filing to discuss the scope of the discharge. Generally, excluding cases that are dismissed or converted, individual debtors receive a discharge in more than 99 percent of chapter 7 cases. In most cases, unless a party in interest files a complaint objecting to the discharge or a motion to extend the time to object, the bankruptcy court will issue a discharge order relatively early in the case – generally, 60 to 90 days after the date first set for the meeting of creditors. Fed. R. Bankr. P. 4004(c).

The grounds for denying an individual debtor a discharge in a chapter 7 law case are narrow and are construed against the moving party. Among other reasons, the court may deny the debtor a discharge if it finds that the debtor: failed to keep or produce adequate books or financial records; failed to explain satisfactorily any loss of assets; committed a bankruptcy crime such as perjury; failed to obey a lawful order of the bankruptcy court; fraudulently transferred, concealed, or destroyed property that would have become property of the estate; or failed to complete an approved instructional course concerning financial management. 11 U.S.C. § 727; Fed. R. Bankr. P. 4005.

Secured creditors may retain some rights to seize property securing an underlying debt even after a discharge is granted. Depending on individual circumstances, if a debtor wishes to keep certain secured property (such as an automobile), he or she may decide to “reaffirm” the debt. A reaffirmation is an agreement between the debtor and the creditor that the debtor will remain liable and will pay all or a portion of the money owed, even though the debt would otherwise be discharged in the bankruptcy. In return, the creditor promises that it will not repossess or take back the automobile or other property so long as the debtor continues to pay the debt.

If the debtor decides to reaffirm a debt, he or she must do so before the discharge is entered. The debtor must sign a written reaffirmation agreement and file it with the court. 11 U.S.C. § 524(c). The Bankruptcy Code requires that reaffirmation agreements contain an extensive set of disclosures described in 11 U.S.C. § 524(k). Among other things, the disclosures must advise the debtor of the amount of the debt being reaffirmed and how it is calculated and that reaffirmation means that the debtor’s personal liability for that debt will not be discharged in the bankruptcy. The disclosures also require the debtor to sign and file a statement of his or her current income and expenses which shows that the balance of income paying expenses is sufficient to pay the reaffirmed debt. If the balance is not enough to pay the debt to be reaffirmed, there is a presumption of undue hardship, and the court may decide not to approve the reaffirmation agreement. Unless the debtor is represented by an attorney, the bankruptcy judge must approve the reaffirmation agreement.

If the debtor was represented by an attorney in connection with the reaffirmation agreement, the attorney must certify in writing that he or she advised the debtor of the legal effect and consequences of the agreement, including a default under the agreement. The attorney must also certify that the debtor was fully informed and voluntarily made the agreement and that reaffirmation of the debt will not create an undue hardship for the debtor or the debtor’s dependants. 11 U.S.C. § 524(k). The Bankruptcy Code requires a reaffirmation hearing if the debtor has not been represented by an attorney during the negotiating of the agreement, or if the court disapproves the reaffirmation agreement.11 U.S.C. § 524(d) and (m). The debtor may repay any debt voluntarily, however, whether or not a reaffirmation agreement exists. 11 U.S.C. § 524(f).

An individual receives a discharge for most of his or her debts in a chapter 7 bankruptcy case. A creditor may no longer initiate or continue any legal or other action against the debtor to collect a discharged debt. But not all of an individual’s debts are discharged in chapter 7. Debts not discharged include debts for alimony and child support, certain taxes, debts for certain educational benefit overpayments or loans made or guaranteed by a governmental unit, debts for willful and malicious injury by the debtor to another entity or to the property of another entity, debts for death or personal injury caused by the debtor’s operation of a motor vehicle while the debtor was intoxicated from alcohol or other substances, and debts for certain criminal restitution orders.11 U.S.C. § 523(a). The debtor will continue to be liable for these types of debts to the extent that they are not paid in the chapter 7 case. Debts for money or property obtained by false pretenses, debts for fraud or defalcation while acting in a fiduciary capacity, and debts for willful and malicious injury by the debtor to another entity or to the property of another entity will be discharged unless a creditor timely files and prevails in an action to have such debts declared nondischargeable. 11 U.S.C. § 523(c); Fed. R. Bankr. P. 4007(c).

The court may revoke a chapter 7 discharge on the request of the trustee, a creditor, or the U.S. trustee if the discharge was obtained through fraud by the debtor, if the debtor acquired property that is property of the estate and knowingly and fraudulently failed to report the acquisition of such property or to surrender the property to the trustee, or if the debtor (without a satisfactory explanation) makes a material misstatement or fails to provide documents or other information in connection with an audit of the debtor’s case. 11 U.S.C. § 727(d).

Frequently Asked Questions About Bankruptcy

Can I still file bankruptcy after the new bankruptcy law ?
Yes. The new law changed the bankruptcy rules, but the law did not eliminate your right to bankruptcy protection.

Do have to take a credit counseling course before I file bankruptcy?

The new bankruptcy law requires all debtors to fulfill two education requirements: a credit counseling course prior to filing and a financial management course after the filing date. Failure to complete either of these courses and file the appropriate certificates with the court will prevent a successful bankruptcy. The Chapter 13 Trustee will offer the required courses to Chapter 13 debtors, but Chapter 7 debtors are required to take the courses on their own. All bankruptcy education courses are available in person, by phone, or over the internet and are approved for the district in which you are filing. Most courses take less than one hour to complete and costs less than $50.
Who can file bankruptcy?
Any person residing, domiciled, or having property or a place of business in the United States may file Chapter 7. A business may also file a Chapter 7. The new bankruptcy law includes a “means test” which applies an income vs. expense test in order to file Chapter 7 bankruptcy. If the means test indicates you have enough disposable income to pay a significant portion of your unsecured debts you have to file under Chapter 13, provided you meet Chapter 13 debt ceilings. There are currently no minimum or maximum income limits or other income requirements or limitations for people whose unsecured debts are primarily non-consumer debts such as investment liability, business losses, taxes, or student loans.

What is a Chapter 7 bankruptcy?
Chapter 7 bankruptcy is the most common type of bankruptcy and is often referred to as a “liquidation bankruptcy.” In Chapter 7, all of the debtor’s assets, other than those types of assets specifically exempt from liquidation by statute, are turned over to a bankruptcy trustee for sale. Sale proceeds, if any, are distributed among the creditors. Most Florida Chapter 7 debtors have little non-exempt personal property because of Nevada’s liberal exemption laws. Chapter 7 bankruptcy is used to eliminate, or discharge, primarily unsecured debts such as credit cards or medical bills. Chapter 7 does not eliminate secured debts, such as vehicles (unless the secured item is surrendered). Chapter 7 will not save a house from foreclosure nor a car from repossession if you are delinquent in payments. Under the new bankruptcy law, only people who pass the “means test” may file a Chapter 7 bankruptcy. People who fail the means test have to file Chapter 13 bankruptcy provided you are under Chapter 13 debt ceilings. The means test is a complicated mathematical formula. Your bankruptcy attorney can run a means test using bankruptcy software after he collects necessary information from you.

What is a Chapter 13 bankruptcy?

Chapter 13 bankruptcy results in a plan to repay all or part of your debt, but it is not designed to discharge or eliminate most debts. Chapter 13 is used most often to save a house from a foreclosure sale. You can use Chapter 13 to “strip” a second mortgage under certain circumstances. Chapter 13 is also useful to eliminate some IRS debt and to establish an affordable plan to pay IRS debt that cannot be eliminated. Chapter 13 bankruptcy is available to debtors with regular income. A business cannot file Chapter 13. In addition, there are upper limits on the amount of the individual’s secured and unsecured debts in Chapter 13 cases.

Who can file bankruptcy in the Las Vegas District?

The Las Vegas District accepts bankruptcy filings from individuals who reside or are domiciled in Las Vegas. If you file bankruptcy in Nevada, however, you can only claim Florida’s asset exemptions if you have resided in Nevada for the previous two (2) years. Otherwise, you must use exemptions of the state where you previously lived for two years or, in some cases, the default set of federal bankruptcy exemptions.

Can married people file bankruptcy jointly?
Married debtors can file a joint bankruptcy petition for a single filing fee, and most attorneys charge the same legal fee for joint cases as they do for individual cases. Married couples who are jointly liable on most debts should file a joint bankruptcy. On the other hand, if only one spouse is liable on most of the debts, the indebted spouse may file an individual bankruptcy, and in most cases, the individual debtor’s bankruptcy will have no adverse effect on the non-filing spouse.

Do I need an attorney to file bankruptcy?

Bankruptcy law does not require that you hire an attorney to prepare a bankruptcy petition or to represent you in your bankruptcy case. If you enjoy doing things yourself, or if you really cannot afford an attorney, you can find forms on the internet needed needed to file your own petition. However, bankruptcy is a complicated area of the law, and the bankruptcy law gives no special treatment to debtors who file their own petition. The new bankruptcy law makes filing bankruptcy substantially more complicated and the practice of bankruptcy law is therefore more specialized. I strongly believe that the financial risk of filing your bankruptcy incorrectly under the new bankruptcy law is much greater than the amount of a reasonable fee paid to a bankruptcy attorney.

How much do attorneys charge for bankruptcy?
In the past, most consumer bankruptcies were relatively simple and legal fees were low. The new bankruptcy law increases the amount and complexity of legal work required to prepare a bankruptcy petition and successfully complete a filing, and as a result, legal fees are higher than they used to be. Also, the amount of work and fees will vary according to the debtor’s income level. As a general guideline, a debtor below Florida’s median income should not have to pay more than $2,000 in legal fees for a simple Chapter 7 bankruptcy. The court charges a $299 filing fee, and there may be other costs for financial education required by the bankruptcy law. A debtor with income above Nevada’s median income will usually have to pay $300 to $500 more as additional paperwork is required. It is possible, but difficult, to file bankruptcy without the help of an experienced bankruptcy attorney.

Chapter 13 cases are more complicated, and legal fees are higher. The Nevada judges expect and approve legal fees of approximately $4,500 (in addition to the filing fee) to file and complete a standard Chapter 13 case. If your Chapter 13 case involves a wholly-owned business, or other complicated legal issues, legal fees will be higher. The good news is that most attorneys require a down payment of approximately $1,500 to $2,500 (plus the filing fee) to prepare and file a Chapter 13 case. The balance is paid through the Chapter 13 plan over a period of several months.

More Valuable Information About Various Chapters of Bankruptcy

The Bankruptcy Code
[This article originally appeared in
Bar Bulletin
Long Beach Bar Association
April 1992}

(Title 11 of the United States Code) gives the force of law to several national policies or values. First is the value of allowing a debtor a breathing spell and a fresh start, the chance for a productive future unburdened by past debts and mistakes. Second is the value of a fair distribution of a debtor’s property among creditors. The federal bankruptcy system is designed to achieve an orderly, equitable distribution of the debtor’s assets under court supervision and compulsion. By contrast, state law on creditors’ rights has been called “grab law.” Each creditor grabs what it can, and the debtor is dismembered. The swift creditor is rewarded. The slow creditor gets nothing.

TWO TYPES OF BANKRUPTCIES: CHAPTER 7 AND CHAPTER 11

Under Chapter 7, the debtor’s assets are simply liquidated. Upon filing a Chapter 7 petition, the debtor turns its keys over to a private trustee and walks out of business. The trustee is appointed by the Office of the U.S. Trustee (a part of the Justice Department that generally monitors bankruptcy proceedings). The filing of the Chapter 7 petition creates a “bankruptcy estate” that the trustee administers for the benefit of creditors. The trustee locates and liquidates everything of value that the debtor had.

Under Chapter 11, the debtor stays in possession of its assets. Its business continues. It proposes a plan of reorganization. The plan usually proposes a restructuring of debts and can affect equity. A committee of creditors may arise as a counterweight to the debtor, monitoring the debtor’s handling of the business, particularly the handling of cash and equivalents, called “cash collateral.” The creditors’ committee may urge and participate in the debtors’ development of a plan. After 120 days, during which the debtor has the exclusive right to propose a plan, the creditors’ committee or an equity security holders’ committee may propose a plan. The creditors’ committee, viewed mainly as an interference by debtor, can nevertheless benefit the debtor. The tension created by the committee’s monitoring can help debtor obtain approval for rehabilitative steps if and when debtor can show the court that the committee approves. Ultimately, in a typical Chapter 11, debtor proposes a plan and a disclosure statement. Creditors may vote against the plan, but the court may approve a plan it deems fair (“cramdown”). Bankruptcy Code Section 1129(b). If debtor does not propose a plan, the case may be converted to a Chapter 7 liquidation or dismissed. An alternative to the plan process may be a sale of assets, then a liquidation.

Selecting Chapter 7 or Chapter 11- For a business contemplating bankruptcy, a key inquiry in deciding between Chapter 7 and Chapter 11 is whether the business can be rehabilitated. If the future can be better than the past, then the considerable requirements of Chapter 11 may be worthwhile. The requirements include substantial initial filings, regular reporting to U.S. Trustee, answering to creditors, and developing a plan, not to mention the expense. The demands of Chapter 11, for debtor as well as creditors, should not be underestimated. If hope for rehabilitation is gone, Chapter 7 is the option.

AUTOMATIC STAY

Creditors must stand still from the moment of filing, by virtue of the “automatic stay” (or injunction) on new lawsuits, continuation of old lawsuits, letters, and phone calls to the debtor. Bankruptcy Code Section 362(a). Relief from stay may be sought by motion. Bankruptcy Code Section 362(d). Grounds are “cause” (not defined) or, if creditor wants to act against property, the debtor has no equity in the property and the property is not necessary to an effective reorganization. Stay relief motions are expedited.

CREDITOR STATUS

Secured Creditors -The distribution scheme pays secured creditors first. Determination of secured status is important. Under Bankruptcy Code Section 506, a claim is secured to the extent of the value of the creditor’s interest in the estate’s interest in property. For example, the estate includes a 50 percent interest in a warehouse. The warehouse is worth a million dollars, so that the value of the estate’s interest is $500,000. A creditor has a claim in the amount of $600,000, secured by the estate’s interest in the warehouse. The creditor is secured to $500,000, and unsecured in the amount of $100,000.

Unsecured Creditors:

Priority Claims – Some unsecured claims have priority. Bankruptcy Code Section 507. Among these are: administrative expenses (including costs of preserving the estate and post-petition taxes on the estate, compensation of the trustee and his or her attorney, and compensation of a creditor that recovers concealed property of the estate); wages earned by an employee within 90 days before filing of the petition); and certain contributions owed to an employee benefit plan.

Other Unsecured Claims – Without priority, a claim is a general unsecured claim, vulnerable to impairment or extinguishment under Chapter 7 or Chapter 11.

INVOLUNTARY BANKRUPTCY

Most bankruptcies are voluntary, but involuntary bankruptcy may occur. Bankruptcy Code 303. For example, creditors see debtor selling off assets and distributing money to employees and shareholders to the detriment of creditors. Or creditors see debtor in a downward spiral so that creditor with a chance for 50 cents on the dollar in May will get 20 cents in September. Creditors may confer and file an involuntary petition, placing debtor in Chapter 7 or Chapter 11. If debtor has at least 12 creditors, at least three must sign the involuntary petition. Other creditors may join later. Creditors can make the petition stick if “the debtor is generally not paying such debtor’s debts as such debts become due unless such debts are the subject of a bona fide dispute.” Bankruptcy Code Section 303(h) (1).

THE DISCHARGE

A main goal of the voluntary bankruptcy debtor is the discharge or, for practical purposes, extinguishment of the debtor’s debts. Just as the automatic stay precludes pursuit of the debtor during the pendency of the bankruptcy case, the discharge precludes creditor’s recovery after the conclusion of the bankruptcy case. Judgments against the debtor are voided. The practitioner should note that a post-discharge complaint filed against debtor still must be answered; debtor pleads the discharge as an affirmative defense. During the pendency of the bankruptcy case, however, a creditor may file a complaint (a separate lawsuit under the umbrella of the main bankruptcy proceeding) to have that creditor’s debt excepted from a discharge because, for example, that particular debt was obtained by fraud or is a debt arising from a fiduciary duty. Bankruptcy Code Section 523. Also, a creditor may file a complaint urging that debtor be denied a discharge of all debts because, for example, debtor has concealed property, or destroyed records necessary to determine debts, or because debtor has otherwise been uncooperative with the Bankruptcy Court. Bankruptcy Code Section 727.

PREFERENCES AND FRAUDULENT TRANSFERS

Preferences – Anticipating disaster for the business, debtor may transfer title to the warehouse to an officer of the company who had lent the company a bundle. Or debtor may simply pay a supplier 100 percent of its balance due, and days later, in bankruptcy, leave other creditors only 20 cents on the dollar. In the name of equity, a transfer of the debtor’s interest in property may be avoided by the trustee or the debtor in possession as a “preference” among creditors. A preference is a transfer: (1) to or for the benefit of a creditor; (2) for an “antecedent debt” owed by the debtor before the transfer; (3) made while the debtor was insolvent; (4) made between 90 days and one year before the debtor filed bankruptcy, if the transfer is to an insider [defined in Bankruptcy Code Section 101(31)], and within 90 days before filing if the transfer was to a non-insider creditor; and (5) the creditor received more than under Chapter 7 liquidation. Bankruptcy Code Section 547(b). The transferee, receiving the bitter news that he must disgorge money fairly earned, may defend. Defenses include “a contemporaneous exchange for new value” and “ordinary course of business.” Bankruptcy Code Section 547(c).

Fraudulent Transfers – A fraudulent transfer, also avoidable, is a transfer made with actual intent to hinder, delay or defraud creditors, or, regardless of intent, made for less than reasonably equivalent value. For example, when the bank is about to foreclose, the debtor may not transfer the warehouse to the president’s aunt or uncle as a gift, or convey title in a “sale” for $1,000. Bankruptcy Code Section 548.

This has been a glimpse of a complex area. Subjects mentioned here, as well as others in the bankruptcy process, warrant close examination in addressing the client’s particular facts.

This article originally appeared in
Bar Bulletin
Long Beach Bar Association
April 1992

What is Diference Between Different Kinds of Claims?

Your bankruptcy attorney uses this language quite often, and we do too. It is some a special lingua franca, in describing bankruptcy either other than the common definitions and the kinds of claims in describing the bankruptcy process. Now, let us see what are these claims:
Secured, Priority and Unsecured Claims – what’s the difference?Before we use it more than once, you might be curious to know what basically is the difference in all three of them. Well, first thing you have to know is that not all creditors are created equally. Because they are in inequal, therefore their claims also needs different priorities.

There are three types of creditors in bankruptcy:

Secured creditors
Priority creditors
Unsecured creditors

Secured creditors are those who have a lien or security interest in collateral. Examples of this include:
– Mortgage lenders
– Automobile finance companies
– Certain furniture dealers
– Certain jewelry dealers
– Car title lenders
Priority creditors get paid first from whatever is left in your estate after exemptions and secured creditors. Priority creditors include:

– Domestic support claimants (usually ex-spouses for alimony or support)
– Wage claims
– Tax claims within 3 years (it’s more complicated than that but this is what you need to know to start)
– Non-dischargeable tax claims – for example sales or withholding tax claims.
– All other creditors are unsecured.

An unsecured debts can be wiped out in a chapter 7 bankruptcy, while it may go toward reorganization in a chapter 13 reorganization. They are generally the following:
– All credit card transaction
– All personal transactions.
– All medical bills
– Any financial transactions which is not a security interest.
The best thing is that you are entitled to an automatic stay which you definitely need to have a shelter from your demanding creditors.

For secured creditors, you need to show your intention as “surrender” “reaffirm” or “others”, In case you want to surrender, there is no liability, and the credit claims can be wiped out. However, reaffirmation is risky, and you are telling the judge that you are willing to continue as long as you keep on making the payments. Surrender is a good option, if you have been involved in unhappy and expensive transaction. Of course anything you surrender, there should be no recurring liability. All liabilities associated with surrender should disappear and be wiped out via bankruptcy. There should not be any deficiency judgments after you surrender.

How Chapter 13 can be used to stop foreclosure?

How Chapter 13 Can Be Helpful In Stopping Foreclosure?
Foreclosure are on the rise in Nevada, and especially in Las Vegas. Chapter 13 is one of the appropriate remedy. When should Chapter 13 be filed? Benefits of Chapter 13 in stopping foreclosure.
My clients quite often asked me one very important question whether they should continue to seek
mortgage modification, or go ahead and file a Chapter 13 to stop a foreclosure. It is of course a very
pertinent question. There is a very slow pace of lenders’ response to modification applications on one pretext or the other. Let me analyze it with more emphasis this time.
1. First of all, You need to know what kind of modification you are applying for. Again, your modification does not stop the foreclosure process. In fact, both are dealt by two different sections of the same bank and have virtually no liaison with each other. If that is the case, you may have a very limited time in which to deal with a foreclosure if you are turned down for a modification. Other programs, like the HAMP program, require that lenders stop foreclosures while they process modifications. It is important to know whether your lender is proceeding with foreclosure in parallel with a modification application, or suspending foreclosure. If the latter is the case, you will have more time to respond, but you still may have to respond quickly.
2. It is has to be determined right away by your lender and you should know as well whether you are likely to qualify for modification under the application guidelines. For example, the HAMP program requires that you show that you have sufficient income to make the reduced payments in order to get approval. If you just lost your job, and you have no income, you aren’t going to qualify for that particular program. If you can predict with a fair amount of accuracy whether you will be accepted or rejected for modification, you can plan accordingly.
3. Please read this blog quite often as I update this continuously even on holidays and please educate yourself about the foreclosure process where you live, and where your case is in that process. I have a tremendous amount of information which is free of course and I never hide anything from Nevada residents. I like them to be fairly educated and make their own smart decisions in this regard. Please do not wait until the last minute to talk to a knowledgeable foreclosure defense attorney in this regard. Time, is of course, the essence in these matters. There can also be differences in what a lender considers to be “in foreclosure” and what a lawyer would describe as “in foreclosure.” The best way to determine what the process is and where you are in it is to consult with a seasoned attorney who handles such matters in your jurisdiction. Your options are very limited if the home is foreclosed.
4. You may want to consider whether you have defenses to foreclosure. First of all, most modification agreements that I have seen contain some language that says that you are waiving any defenses to the mortgage. Know what you are giving up before you sign such a release. Further, you may also want to consider defending a foreclosure action as a third alternative to modification programs or Chapter 13. Many attorneys who handle such matters report that the most meaningful modifications that they see are those that are the result of settlement negotiations where defenses to foreclosure have been raised.
5. There is nothing wrong with Chapter 13 filing when nothing else works or if your lender has become very stubborn. Deal with him in any way possible and stop the foreclosure on your home. This is your fortress and if it is foreclosed, next home purchase is too far away. Fight back, and don’t procastinate.