A creditor in a bankruptcy case is a person or entity to whom the debtor (the person or entity that filed for bankruptcy) owes money or who claims to be owed money by the debtor. If you have received a notice from the court about a particular bankruptcy case, it means that the debtor has listed you in the debtor's bankruptcy case as someone to whom the debtor owes money or might owe money.
Because of the Automatic Stay you are not allowed to begin or continue any efforts to collect the debt owed to you by the person or entity who has filed bankruptcy, and you should contact an attorney for advice on how to proceed.
If you believe the debtor is hiding money or property or is being untruthful in a bankruptcy case, call or write the U.S. Trustee (503-326-4000 for Portland cases; 541-465-6330 for Eugene cases) or the case trustee. You can also send an email to the U.S. Trustee's Fraud Hotline at USTP.Bankruptcy.Fraud@usdoj.gov. Guidelines for using the hotline are posted at the U.S. Trustee's web site. If you have questions about what is happening in a particular bankruptcy case, call the case trustee.
To obtain a proof of claim form, click here.
To get information about a bankruptcy case, you can
(1) Call VCIS (Voice Case Information System) for free basic case data by dialing 866-222-8029 (Press "1" for English and "67" for Oregon).
(2) Access PACER (real-time access to all case data from the internet). Pacer requires a Pacer account available at http://www.pacer.gov/ or call 800-676-6856.
(3) Review Frequently Asked Questions ("FAQ") by Creditors below.
Because of the automatic stay you are not allowed to begin or continue any efforts to collect the debt owed to you by the person or entity who has filed bankruptcy, and you should contact an attorney for advice on how to proceed.
If you have been listed as a creditor in a bankruptcy case and if the case is an “asset” case, you will receive a proof of claim form and notice of the filing deadline. All chapter 11, 12 and 13 cases are “asset” cases and will have a proof of claim form with the first notice you receive from the court.
Most chapter 7 cases are considered to be “no asset” cases in the beginning and are not determined to be asset cases until after the trustee has had an opportunity to examine the debtor(s) at the Meeting of Creditors. For that reason there will be no proof of claim form with the first notice you receive in a chapter 7 case. If and when the trustee determines the case to be an asset case, the court will send a notice of the deadline to file claims to all the creditors listed in the case. It will contain a proof of claim form to be filled out and filed with the court. The notice which accompanies the proof of claim form will give you the deadline by which you must file your claim form.
Be sure to file the proof of claim form the court sends you in that case no later than the deadline set by the court, and be sure to sign it and attach any documentation you have which supports your claim. This is because it included an ID number that is unique to both the named creditor and that particular case. If you want to have a file-stamped copy (conformed copy) returned to you, you must enclose a self-addressed stamped envelope and an extra copy of the proof of claim form with a certification that the copy is an exact duplicate of the original.
For various reasons a meeting of creditors may occasionally be rescheduled. If so, it may be rescheduled in the hearing room with notice only to those present, or another notice may go out to some or all the creditors notifying them of the new date. The notice will usually say the meeting is being reset or rescheduled. Creditors may, but do not need to, attend the meeting. Debtors must attend a meeting of creditors and under oath respond to the questions put to them by the trustee or creditors. The debtor must attend any reset or rescheduled meeting unless the trustee clearly states that the debtor’s presence is no longer needed.
Filing An Adversary Proceeding Complaint
If it is determined from the information below that an adversary proceeding is appropriate, complaints are filed in the clerk’s office. Unless the complaint is electronically filed, each complaint must be submitted with a fully filled out Adversary Proceeding Coversheet local form APCS-B104 (which is identical to Official Form B104). Detailed instructions for filing an adversary proceeding complaint are found in local forms ADV and ADV-2.
What is an Adversary Proceeding?An adversary proceeding is the bankruptcy court’s version of a civil complaint. It is governed by Federal Rule of Bankruptcy Procedure (FRBP) Rule 7001 and is a proceeding to:
(1) Recover money or property. [Except for a proceeding (a) to compel the debtor to deliver property to the trustee; (b) to recover or reclaim property in the hands of a DIP or trustee under 11 USC §554 (abandonment) or §725 (disposition of property); (c) under FRBP 2017 (examination of debtor's transactions with debtor's attorney); and (d) under FRBP 6002 (accounting by prior custodian of property of the estate)].
(2) Determine the validity, priority, or extent of a lien or other interest in property. [Except for a proceeding under FRBP 4003 [liens impairing debtor's exemptions] which is also covered by Local Bankruptcy Rule (LBR) 4003-2 and requires the filing of Local Bankruptcy Form (LBF) #717, Notice of Motion for Avoidance of Lien Pursuant to 11 U.S.C. §522(f) in a Chapter Case, and LBF #717.15, Instructions].
(3) Obtain approval pursuant to 11 USC §363 for the sale of both the interest of the estate and of a co-owner (i.e., non-debtor) in property.
(4) Object to or revoke a discharge, except for motions objecting to discharge pursuant to 11 USC §§727(a)(8), 727(a)(9), or 1328(f) (See FRBP 4004(a) and 7001(4)).
(5) Revoke an order of confirmation of a chapter 11, chapter 12, or chapter 13 plan.
(6) Determine the dischargeability of a debt.
(7) Obtain an injunction or other equitable relief [NOTE: Also see LBR 7065].
(8) Subordinate any allowed claim or interest.[Except for when subordination is provided in a chapter 9, 11, 12, or 13 plan].
(9) Obtain a declaratory judgment relating to any of the foregoing in points 1 through 8.
(10) Determine a claim or cause of action removed pursuant to 28 USC §1452 [removal of claims related to bankruptcy cases].
EXAMPLES OF ACTIONS REQUIRING AN ADVERSARY PROCEEDING:
a. Proceedings brought to avoid transfers by the debtor under 11 USC §544 [trustee's power to avoid obligations incurred by the debtor], §545 [trustee's power to avoid the fixing of a statutory lien on property of the debtor], §547 [trustee's power to avoid preferential transfers], §548 [trustee's power to avoid fraudulent transfers and obligations], and §549 [trustee's power to avoid postpetition transaction].
b. FRBP Rules 5008 & 9025 proceedings on bonds.
c. FRBP 4004 denial of discharge based on §727 or §1328, except for motions objecting to discharge pursuant to 11 USC §§727(a)(8), 727(a)(9), or 1328(f) (See FRBP 4004(a) and 7001(4)).
d. 11 USC §§727, 1228 or 1328 revoke discharge.
e. 11 USC §523 dischargeability of particular debt.
f. 11 USC §§1144, 1230 and 1330 revoke an order of confirmation of a plan in chapters 11, 12 or 13.
g. 11 USC §510 to subordinate a claim or interest other than as part of a plan.
h. 11 USC §363 to sell interest of both debtor and of co-owner.
Adversary Proceedings are not any action relating to the exceptions listed above including (but not limited to) motions/requests/stipulations for relief from automatic stay per 11 USC §362 and FRBP 4001, objections to claims unless joined with a demand for relief of a kind covered by FRBP 7001. A debtor's motion to avoid a lien impairing exemptions pursuant to 11 USC §522 is not an adversary proceeding but a motion/stipulation for lien avoidance by anyone other than the debtor is an adversary proceeding per point (2) above.While the information presented above is as accurate as possible as of the date of publication, it should not be cited or relied upon as legal authority. It is highly recommended that legal advice be obtained from a bankruptcy attorney or legal association. For filing requirements, please refer to the United States Bankruptcy Code (Title 11, United States Code), and the Local Rules for the United States Bankruptcy Court for the District of Oregon.
A reaffirmation agreement is an agreement by which a bankruptcy debtor becomes legally obligated to pay all or a portion of an otherwise dischargeable debt. All reaffirmation agreements must be filed using Official Form #B240A (preferred by the court) or Official Form #B240A/B Alt and in either case attach Official Form #B27 as a cover sheet. To be timely, such an agreement must be filed by the debtor within 60 days after the first date set for the meeting of creditors. See LBR 4008-1.
Reaffirmation agreements are strictly voluntary. They are not required by the Bankruptcy Code or other state or federal law. A debtor can voluntarily repay any debt instead of signing a reaffirmation agreement, but there may be valid reasons for wanting to reaffirm a particular debt.
If the debtor is represented by an attorney, and the reaffirmation agreement and cover sheet indicate a presumption of undue hardship, a hearing will be scheduled, even if the attorney signs the certificate indicating that in his or her opinion the debtor can make the payments called for under the reaffirmation agreement. The debtor and debtor's attorney must attend this hearing and offer evidence to rebut the presumption of undue hardship.
If the debtor is not represented by an attorney, and a reaffirmation agreement is filed, the court must also schedule a hearing. The debtor is required to attend this hearing. To be effective, the reaffirmation agreement must be approved by the judge as consistent with the debtor's best interests, unless the debt to be reaffirmed is for a consumer debt secured by a mortgage, deed of trust, security deed, or other lien on real property. Since a reaffirmation agreement takes away some of the effectiveness of the debtor's discharge, it is advisable to seek legal counsel before agreeing to a reaffirmation. Even if the debtor signs a reaffirmation agreement, the debtor has 60 days after the agreement is filed with the court (or the date of entry of discharge, whichever is later) to change his/her mind and rescind the agreement. In either event, to rescind a reaffirmation agreement, the debtor must notify the creditor that the reaffirmation agreement is being rescinded. If the debtor reaffirms a debt, does not rescind the agreement, and fails to make the payments as agreed, the creditor can take action against the debtor to recover any property that was given as security for the debt, and the debtor may remain personally liable for any remaining debt after the collateral is sold.
The "automatic stay" provided by 11 U.S.C. §362 in most circumstances stops the commencement or continuation of most actions or proceedings that a creditor might take or be in the process of taking to collect money or property from the debtor. In some circumstances, however, if a debtor has had a prior case or cases dismissed within one year prior to the filing of the new case, the stay may not go into effect, or may be effective for only a short period of time, such as 30 days, unless the debtor takes action to reimpose or continue the stay. A creditor wishing to proceed with action against the debtor or the debtor's property in a case in which the stay is in effect must get permission from the court by obtaining relief from the automatic stay or face a potential claim for damages, including costs and attorney's fees, and, in appropriate circumstances, punitive damages. Creditors who are uncertain of their rights, or unsure if the automatic stay applies to them, should seek legal advice.
While the information presented above is as accurate as possible as of the date of publication, it should not be cited or relied upon as legal authority. It is highly recommended that legal advice be obtained from a bankruptcy attorney or legal association. For filing requirements, please refer to the United States Bankruptcy Code (Title 11, United States Code), and the Local Rules for the United States Bankruptcy Court for the District of Oregon.
Debtors are supposed to list everyone they owe money to at the time of filing. If they are unsure whether or not money is still owed, many times the debtor will list them anyway as a precautionary measure. If you are sure that you do not know the person/company who is the debtor you are certainly free to recycle the documents/notices as you see fit. You may also send the court a copy of the notice, and date and sign a request that you be removed from the mailing list in that case.
If you are trying to find out why you were listed by the debtor, you should call the debtor’s attorney. No one at the court will be able to help you with that information.
In order for a party to continue a proceeding against the debtor or a co-debtor that has been stayed because of the filing of a bankruptcy, (s)he must file with the Bankruptcy Court a Motion for Relief from the Automatic Stay, or a Motion for Relief from the Co-Debtor Stay . If the parties are in agreement, a Stipulated Order concerning the automatic stay using LBF #720.90 may be filed.
A Motion for Relief from the Automatic Stay or a Motion for Relief from the Co-Debtor Stay is commenced by the filing of a motion. This motion cannot be combined with any other motion or request for alternative relief. Procedures and general requirements for filing one of these motions are found in the Local Bankruptcy Rules (LBR 4001-1) and LBF #720.50 (General Relief From Stay Procedures). For Chapter 7 and 13 motions for relief from stay, and/or for Chapter 13 motions for relief from co-debtor stay, draft a Motion For Relief From Debtor/Co-Debtor Stay using LBF #720.80 and attach Notice of Motion using LBF #720. For Chapter 11 or 12 motions for relief from stay, draft a custom motion and attach the Notice of Motion using LBF #1124. For Chapter 12 motions for relief from co-debtor stay, draft a custom motion, and attach the Notice of Motion using LBF #1220 and the Notice of Hearing using LBF #1220.5. Orders pertaining to relief from stay are filed with the Court using LBF#720.90.
The filing fee for a Motion for Relief from the Automatic Stay is found on the Court Fees List.
In Chapter 7 cases, when a party has a security interest in property in which the debtor has no equity and if the debtor does not object to the release of the property, the trustee may grant non-judicial relief from stay upon the presentation of the appropriate documentation. See LBF #715 and LBF #750 for more specific information. There is no fee for Non-Judicial Relief From Stay.
Generally the following definitions will apply, but if you have any questions about the classification of your debts, you should seek competent legal advice.
Secured debt - A debt that is backed by real or personal property is a “secured” debt. A creditor whose debt is “secured” has a legal right to take the property as full or partial satisfaction of the debt. For example, most homes are burdened by a “secured debt”. This means that the lender has the right to take the home if the borrower fails to make payments on the loan. Most people who buy new cars give the lender a “security interest” in the car. This means that the debt is a “secured debt” and that the lender can take the car if the borrower fails to make payments on the car loan.
Unsecured Debt - If you simply promise to pay someone a sum of money at a particular time, and you have not pledged any real or personal property to collateralize the debt, the debt is unsecured. For example, most debts for services and some credit card debts are “unsecured”.
Priority Debt - A debt entitled to priority payment ahead of most other debts in a bankruptcy case is a “priority” debt. A listing of priority debts is given, in general terms, in §507 of the Bankruptcy Code. Examples of priority debts are some taxes, wage claims of employees, debts related to goods and services provided to a debtor’s estate during the pendency of a bankruptcy case, and domestic support obligations. If you have questions deciding which of your debts are entitled to priority status, you should consult an attorney.
Administrative Debt - This is also a priority debt and is one created when someone provides goods or services to your bankruptcy estate. The best example of an administrative debt is the fees generated by attorneys and other professionals whose employment has been authorized by the court to represent the bankruptcy estate.
If the case is a chapter 7 and the trustee has collected assets to be reduced to cash and distributed to the creditors, a notice is sent to the creditors to file a proof of claim. Depending upon the type of assets, it may take quite some time to reduce them all to cash. Ultimately, the total funds available for distribution may not exceed the amount of administrative expenses (i.e., trustee’s statutory fees, professional fees incurred in collecting and reducing the assets to cash) and priority claims (i.e., taxes, etc.) so there is nothing left to distribute to the unsecured creditors. In any event, distribution from the estate to creditors is usually not made until the case is almost ready to close.
In chapter 11, 12 and 13, payments are made pursuant to the confirmed plan which governs who gets paid, how much and when. For example the plan may dedicate the first few payments to bringing delinquent payments to secured creditors current before making any distributions to the unsecured creditors. Additionally it may take a few months to build up enough money to send a payment to unsecured creditors. Another reason that payments to creditors may be delayed or interrupted is if the debtor stops making payments for some reason. In that situation, either the debtor may be filing an amended plan, or the trustee will prepare a motion to dismiss the case unless the payments are brought current.
If your ex-spouse has filed a chapter 7 and if you are a co-signer with your ex-spouse on a debt, the creditor can normally require the entire payment of that debt from you even though the divorce decree assigns the debt to your ex-spouse. The provisions of the divorce decree are not binding upon creditors. Depending on the terms of your divorce decree, however, non-support debts ordered to be paid by the ex-spouse under the decree may not be discharged.
If your ex-spouse has filed a chapter 12 or 13, the "automatic" stay extends to any individual co-debtor that is liable on consumer debts with the debtor [11 USC §§1201 & 1301]. In order to pursue collection from a co-debtor, the creditor must file and prevail on a Motion For Relief From Co- Debtor Stay using LBF #s 1220 and 1220.5 for chapter 12) or LBF #720.80 (for chapter 13 see also LBF #720 (Notice of Motion) and LBF #720.50 (General Relief From Stay Procedure). In addition, a chapter 12 or 13 debtor may be able to discharge non-support marital debt ordered in a divorce decree, even if it is not dischargeable in chapter 7.
As this is a very complicated area of law, you should seek legal advice from an experienced bankruptcy attorney for a thorough explanation of your rights and obligations in this area as soon as you find out that your ex-spouse has filed a bankruptcy.
Copies of the Local Bankruptcy Rules for the District of Oregon can be downloaded from this Web Site in PDF Format, or obtained from the Clerk’s office.
If a creditor files an objection to a Plan in either a chapter 12 or 13 case, specific reasons for objecting (i.e., plan does not meet one or more specific requirements of the Code (11 USC §1222 for chapter 12 or §1322 for chapter 13)) must be set out in the objection. To be considered, any objections should be filed at least three (3) business days prior to the confirmation hearing with copies to the trustee, debtor and debtor’s attorney, if any, although a creditor may also object in person at the confirmation hearing. The fact that a creditor is not getting paid is usually not a sufficient reason for objecting unless the creditor is a secured creditor and the debtor is planning to keep the collateral.
The court must still confirm the plan over an objection if it meets the requirements of the Code(11 USC §1225 for chapter 12 or §1325 for chapter 13).
Redemption allows an individual debtor (not a partnership or a corporation) to keep tangible, personal property intended primarily for personal, family, or household use by paying the holder of a lien on the property the amount of the allowed secured claim on the property, which typically means the replacement value of the property (the price a retail merchant would charge for property of such kind, considering the age and condition of the property at the time the value is determined) without deduction for costs of sale or marketing. Otherwise, in order to retain the property, the debtor would have to pay the entire amount of the secured creditor’s debt, or enter into a reaffirmation agreement and become legally obligated on the debt again. The property redeemed must be claimed as exempt or abandoned by the trustee.
With redemption, a debtor may be able to, depending on the replacement value of the property, get liens released on personal household possessions for much less than the underlying debt on those secured possessions.
Redemption must be made in one lump sum payment to the creditor. If the debtor and the creditor agree to the redemption, a stipulated order of redemption is required. If the redemption is opposed, a motion for redemption must be filed using LBF #717.20 within 45 days following the first date set for the meeting of creditors.
See LBF #717.10 for procedures.
Unless for some reason a general discharge of debts is denied (see below ), the Court typically enters an order which grants a discharge to the person(s) named as the debtor(s). A discharge in bankruptcy eliminates a debtor's legal obligation to pay debts that are discharged. The granting of a discharge (1) is not a dismissal of the case, (2) does not determine how much money, if any, the trustee will pay to creditors, and (3) does not always automatically result in the closing of a case. All contested matters, some adversary proceedings, and appeals must be resolved, and the appointed trustee or debtor-in-possession must file a Final Report and Account and request entry of a Final Decree before the Clerk's Office will close the case.
Some individual debts are not dischargeable, and the dischargeability of others may be denied, depending on particular circumstances (see below).
The discharge is a permanent injunction which prohibits any attempt to collect from the debtor all debts that have been discharged, except for debts not discharged by the court. For example, a creditor is not permitted to contact a debtor by mail, phone, or otherwise, to file or continue a lawsuit, to attach wages or other property, or to take any other action to collect a discharged debt from the debtor. There are also special rules that protect certain community property owned by the debtor's spouse, even if that spouse did not file a bankruptcy case. A creditor who violates this order can be held in contempt of court and required to pay damages and attorney fees to the debtor. However, even if a debt is discharged, a creditor may have the right to enforce a valid lien, such as a mortgage or security interest, against the collateral after the bankruptcy, if that lien was not avoided or eliminated in the bankruptcy case.
Most, but not all, types of debts are discharged if the debt existed on the date the bankruptcy case was filed. (If the case was begun under one chapter of the Bankruptcy Code and then converted to a different chapter, the discharge applies to the debts owed when the bankruptcy case was converted.)
In a Chapter 7 case, the discharge is typically entered within 75 days after the §341(a) meeting of creditors. In a Chapter 11 case, the discharge is deemed entered once the debtor' s Chapter 11 Plan has been confirmed (except in an individual Chapter 11 in which discharge is deferred until the debtor completes all plan payments). In Chapter 12 or 13 cases, the discharge is typically entered upon the request of the Trustee following the completion of the debtor's plan payments. Even if a debtor has the legal right to discharge a debt, the debtor can voluntarily repay the debt, formally reaffirm the debt, or redeem collateral which secures a debt.
Denial of Debtor's Discharge And Denial of the Dischargeability of a Particular Debt
A discharge can be denied by the court for either all debts (denial of debtor's discharge) or for one particular debt (denial of the dischargeability of a particular debt). For a discharge to be denied as to all debts, either the debtor must simply not be entitled to a discharge at all by law, or else someone must file an Adversary Complaint (Bankruptcy Court's version of a civil lawsuit) with the court. To deny the dischargeability of a particular debt, either the debt must be non-dischargeable by law, or someone must file an Adversary Complaint with the court seeking to deny the dischargeability of that debt. The following discusses both the denial of debtor's discharge and the denial of the dischargeability of a particular debt.
Denial Of Debtor's Discharge
In the following circumstances, the debtor is not entitled by law to a discharge of any debts, and no party need file an Adversary Complaint seeking to deny the debtor a discharge:
1. The debtor is not an individual (in Chapter 7 cases only);
2. The debtor received a discharge in a Chapter 7 or 11 case filed within eight years prior to the filing of a new Chapter 7 case (six years if the new case was filed prior to 10/17/05), or received a discharge in a Chapter 12 or 13 case within six years prior to the filing of a new Chapter 7 case. See also FAQ When May I File Bankruptcy Again? If the debtor is not entitled to a discharge because of a discharge entered in a prior case, the Court will typically issue a Notice of Intent Not to Grant a Discharge;
3. The debtor has filed, and the Court has approved, a waiver of discharge;
4. The Chapter 11 Plan, or the order confirming the Chapter 11 plan, provides that the debtor is not entitled to a discharge; and/or
5. The Chapter 11 Plan is a liquidating plan, and the debtor would be denied a discharge under 11 U.S.C. §727 had the case been filed under Chapter 7 (for non-individual Chapter 11 debtors only).
Under certain circumstances, the debtor's right to a general discharge can be denied by the Judge. This usually results from some major misconduct on the part of the debtor. In order for a discharge to be denied for any of these reasons, a party in interest (e.g., Trustee or creditor) must file an Adversary Complaint objecting to discharge within sixty days following the first date set for the §341(a) meeting of creditors. The most common examples are as follows:
1. The debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate, has transferred, removed, destroyed, mutilated, or concealed: (a) property of the debtor within one year prior to the filing of the bankruptcy petition and/or (b) property of the estate after the date of filing of the bankruptcy petition;
2. The debtor has concealed, destroyed, mutilated, falsified, or failed to keep or preserve books and records about the debtor's financial condition and/or business transactions;
3. The debtor has failed to satisfactorily explain a loss of assets;
4. The debtor knowing and fraudulently (a) made a false oath or account, (b) presented or used a false claim, (c) gave money or property to a third party for debtor's advantage, or (d) failed to turn over books and records; and/or
5. The debtor has refused to (a) obey any lawful order of the Court other than an order to respond to a material question or to testify, (b) respond to a material question approved by the Court, or to testify, notwithstanding a claim of self-incrimination, after immunity has been granted, or (c) respond to a material question approved by the Court, or to testify, on a ground other than self-incrimination.
Denial of the Dischargeability of a Particular Debt
As noted above, most debts are dischargeable in bankruptcy. The Bankruptcy Code, however, states that the certain individual debts are not dischargeable, and that the creditor does not need to take any Court action to have such a debt declared non-dischargeable. The most common examples of such debts are:
1. Debts for most taxes;
2. Debts for domestic support obligations or those arising out of a divorce decree or separation agreement (except that non-support marital debt can be discharged in Chapter 13);
3. Debts for most student loans;
4. Debts for most fines, penalties, forfeitures, or criminal restitution;
5. Debts for personal injury or death caused by the debtor's operation of a motor vehicle, vessel, or aircraft while intoxicated;
6. Some debts which were not properly listed on the bankruptcy petition and schedules;
7. Debts for which a Reaffirmation Agreement has been approved;
8. Debts which could have been listed in a prior bankruptcy case;
9. Debts neither listed nor scheduled in time to allow the creditor to file a Proof of Claim;
10. Post-bankruptcy condominium or cooperative owners' association fees; and
11. Debts incurred to pay non-dischargeable state and/or federal tax debt.
The dischargeability of other types of individual debts may be denied if the creditor files, within sixty days after the first date set for the §341(a) meeting of creditors, an Adversary Complaint to deny the dischargeability of the debt. If such a complaint is timely filed, the Judge will ultimately rule as to whether or not the debt will be discharged. If a complaint is not timely filed, the debt will be considered discharged. Such "potentially non-dischargeable" debts include:
1. Debts incurred by fraud, false pretenses, or materially false statements regarding financial condition;
2. Debts incurred as a result of fraud or defalcation while acting in a fiduciary capacity, or for embezzlement or larceny; and
3. Debts incurred for willful and malicious injury by the debtor to another entity or property of another entity (except that such debts can be discharged in Chapter 13).
NOTE: The debtor may receive a discharge even if any complaint to deny the dischargeability of a single debt is still pending. The debt in question will not actually be discharged until the Judge rules on the objection.
CAUTION: These lists include many examples of non-dischargeable debts, but 11 U.S.C. §523 and 11 U.S.C. §1328 should be reviewed for complete lists.
If an individual debtor in a Chapter 11, 12, or 13 case is not able to maintain plan payments to the applicable case trustee, it is possible to file a motion for a "hardship" discharge so that the case can be completed. As a practical matter, the relief obtained by the debtor is quite similar to that obtained by converting the case to one under Chapter 7 in that the debts which are not dischargeable in Chapter 7 are not discharged if the Court approves a hardship discharge in the Chapter 11, 12, or 13 case.
For an individual Chapter 11, 12, or 13 debtor to obtain a hardship discharge, such debtor must show that (1) the amount paid to creditors pursuant to the confirmed Chapter 11, 12, or 13 Plan is at least as much as the creditors would have received had the estate been liquidated as of the effective date of the Plan, and (2) modification of the Plan under §1127, §1229, or §1329 is not practicable. In addition, in a Chapter 12 or 13 case, the debtor must show that the failure to complete plan payments is due to circumstances for which the debtor should not justly be held accountable.
Motions seeking a hardship discharge must be filed using LBF #1378.
In a case filed under Chapter 7, following the meeting of creditors, the trustee will determine whether the debtor has sufficient assets to allow for distributions to creditors. If the trustee concludes that sufficient assets exist, a notice will be mailed to all creditors listed by the debtor instructing them to file a proof of claim form by a specified deadline.
In a case filed under Chapter 11, creditors do not need to file a proof of claim in order to receive a distribution pursuant to the plan of reorganization if they were included on the schedules or the list of equity security holders filed with the court by the debtor. If they were not listed, or are listed on the schedules as "disputed", "contingent", or "unliquidated", they must file a proof of claim or interest by the deadline specified by the court.
In a case filed under Chapter 12 or 13, a notice of the meeting of creditors will be mailed to all creditors listed by the debtor instructing them to file a proof of claim form by a specified deadline.
To file a proof of claim (ePOC), click here.
A Dismissal Order ends the case. Upon dismissal the “automatic stay” ends and creditors may start to collect debts unless a discharge is entered before the dismissal and the discharge is not revoked by the court. An Order of Dismissal does not free the debtor from any debt. Often, a case is dismissed when the debtor fails to do something he/she must do: show up for the creditors’ meeting, pay the filing fees, answer the trustee’s questions honestly, produce books and records the trustee requests, file required documents, or when the dismissal is in the best interest of the creditors. The clerk will close the case upon dismissal.
The first two digits of the seven digit bankruptcy case number indicate the year of filing. The first digit after the dash is the location code (“3", “4", or “5" for Portland, and “6", “7", or “8" for Eugene), and the next four digits are the designation given to that case. The letters following the second dash are the initials of the judge assigned to the case, and the final digit(s) indicate the chapter number under which the case is being administered.
In an adversary proceeding, the first two digits of the six digit case number indicate the year of filing. The first digit after the dash is the location code (“3" or “4" for Portland, and “6" or “7" for Eugene), and the next four digits are the designation given to that case. The letters following the second dash are the initials of the judge assigned to the case.
99-32054-rld12 would be a case filed in Portland in 1999, which is assigned to Judge Dunn. It is a chapter 12.
00-61254-aer7 would be a case filed in Eugene in 2000, which is assigned to Judge Radcliffe. It is a chapter 7.
99-6012-fra would be an adversary proceeding filed in Eugene in 1999, which is assigned to Judge Alley.
00-3345-elp would be an adversary proceeding filed in Portland in 2000, which is assigned to Judge Perris.
The “341(a) meeting” is sometimes called the “meeting of creditors” and gets its name from the Section of Title 11 of the United States Code where the requirements for the first meeting of creditors and equity security holders are found. Section 341 of the Bankruptcy Code requires every debtor to personally attend a meeting of creditors and to submit to an examination under oath. The meeting is held outside the presence of the judge. In Chapter 7, 12 and 13 cases, the trustee assigned by the United States Trustee conducts the hearing. In chapter 11 cases where the debtor remains in possession of all the assets and no trustee is immediately assigned, a representative of the Office of the U.S. Trustee conducts the hearing.
The case may be dismissed if the debtor fails to appear at, and complete, this meeting. It is usually scheduled between 21 and 40 days after the new petition is filed and is usually held at the Office of the U.S. Trustee which is located at 620 SW Main #213 in Portland and at 405 E 8th Ave #1100 in Eugene, but may be scheduled at other locations throughout the state to accommodate debtors from outside these metropolitan areas.
The hearing permits the trustee or representative of the U.S. Trustee’s Office to review the debtor’s petition and schedules with the debtor face-to-face. The debtor is required to answer questions under penalty of perjury concerning the debtor’s acts, conduct, property, liabilities, financial condition and any matter that may affect administration of the estate or the debtor’s right to discharge. This information enables the trustee or representative of the U.S. Trustee’s Office to understand the debtor’s circumstances and facilitates efficient administration of the case. Additionally, the trustee or representative of the U.S. Trustee’s Office will ask questions to ensure that the debtor understands the positive and negative aspects of filing for bankruptcy.
The hearing is referred to as the “meeting of creditors” because creditors are notified that they may attend and question the debtor about the location and disposition of assets and any other matter relevant to the administration of the case. However, creditors rarely attend these hearings and are not considered to have waived any of their rights by failing to appear. The hearing usually lasts only a few minutes and may be continued if the trustee or representative of the U.S. Trustee’s Office is not satisfied with the information provided by the debtor. If the debtor fails to appear and provide the information requested at the hearing, the trustee or representative of the U.S. Trustee’s Office may request that the bankruptcy case be dismissed or that the debtor be ordered by the court to cooperate or be held in contempt of court for willful failure to cooperate.