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1. What are my options to obtain copies of case documents, including certified copies? What are my options to review a case that was sent to the National Archives?
2. How do I obtain court or case information?
I. COURT LOCATIONS AND PHONE NUMBERS
1. The District of Oregon Bankruptcy Court has offices in the following two locations, and they are both open from 9:00 A.M. to 4:30 P.M. every Monday through Friday except for federal holidays:
1001 SW 5th Ave #700
Portland, OR 97204
All Access: From the 7th Floor
Phone Numbers:Main: (503) 326-1500
405 E 8th Ave #2600
Eugene, OR 97401
All Access: From the 2nd Floor
Phone Numbers:Main: (541) 431-4000
Bankruptcy case and adversary proceeding files are public records and available for viewing in the Clerk's Office until 4:15 pm in either Portland or Eugene, depending on where the case was filed. If the debtor resides in Benton, Coos, Curry, Douglas, Jackson, Josephine, Klamath, Lake, Lane, Lincoln, Linn, Marion or Polk counties, filings must be made in the Eugene office. If the debtor's address is in any other county, filings must be made in the Portland office. NOTE: Eugene cases are designated by either a "6", "7", or "8" as the first digit of the five digit portion of the case number. Portland cases are designated by either a "3", "4", or "5" as the first digit of the five digit portion of the case number.
II. ELECTRONIC ACCESS TO CASE AND COURT INFORMATION
The U.S. Bankruptcy Court for the District of Oregon maintains two (2) systems for electronic access to information relating to Oregon bankruptcy cases filed since October 9, 1984, and adversary proceedings filed since August 1988. These systems are described below. You must try one of these systems before calling the court as there is a very good chance it will have your information. The systems are:
1. PACER (Public Access to Court Electronic Records) - Extensive access to case records via the Internet. See details immediately below.
2. VCIS (Voice Case Information System)- A free service using a touch-tone telephone that provides basic case information.
PACER: Public Access to Court Electronic Records
The court provides real-time access to electronic case records via PACER services over the internet. You may access PACER here. There is a slight fee charged for access to each page viewed or printed, but with a maximum fee per document. Please refer to the opening page of the court's PACER site for important information regarding the site. It also provides a valuable link to the court's free website containing other extensive and frequently updated general court information at: www.orb.uscourts.gov If you've ever had a PACER account, it remains active for your use. The access fees are charged to your account.
If you don't presently have an account, or have questions such as regarding fees or access to the federal courts' PACER services (including other court's PACER sites and/or the US Party/Case Index system), contact the PACER Service Center at 1-800-676-6856 or at www.pacer.gov.
VCIS: Voice Case Information Service
VCIS is a free service that uses a touch-tone telephone. It provides basic case information. To connect, dial 1-866-222-8029. VCIS uses a computer-generated synthesized voice device to automatically read case information in the court's database such as the case number, chapter, date the case was filed, debtor's name (and, if applicable, names of principal adversaries), debtor's attorney's name, trustee's name, judge's name, date and location of the 341(a) meeting of creditors, any claims filing bar date, case status, and any discharge and/or closing dates of the case.
INSTRUCTIONS ON HOW TO USE THE VCIS SYSTEM
1. To connect, dial 1-866-222-8029.
2. You may either say "Oregon" or you may press pound [#], then "27" for Oregon.View Details»
3. Do I need an attorney to file bankruptcy?
While it is possible for an individual to file a bankruptcy case "pro se", that is, without the assistance of an attorney, it may be difficult to do so successfully. Click here for some important general information about filing for bankruptcy without an attorney.
As noted in the general information, it is recommended that a person considering bankruptcy consult with a competent attorney prior to filing a case. For information about lawyer referral programs, contact the Oregon State Bar at (503) 684-3763 in the Portland metropolitan area or 1-800-452-7636 if calling from other areas.
NOTE: Any entity other than an individual (i.e., corporation, partnership, trust, LLC, LLP, conservatorship, guardianship, etc.) must be represented by an attorney.View Details»
4. Is there any place I can get free or low cost legal advice before I file?
Here are a few possibilities to consider:
1. The Oregon State Bar has a Lawyer Referral program which will direct you to an attorney who has agreed to provide limited consultation at reduced rates. The Oregon State Bar Lawyer Referral Program can be contacted by calling 503-684-3763 in the Portland metropolitan area or 1-800-452-7636 if calling from other areas.
2. Multnomah, Yamhill, Washington, Clackamas & Columbia Counties - If you are low income and live in Multnomah, Yamhill, Washington, Clackamas or Columbia Counties, you can call the legal aid office for your county and, if you meet the income and asset guidelines, they will schedule you for an appointment to meet with a volunteer lawyer immediately after you attend one of the Bankruptcy Clinic classes described below.
In Multnomah or Yamhill County: Call Multnomah County Legal Aid Service at (503) 224-4086.
In Washington, Clackamas or Columbia County: Call Oregon Legal Services (Hillsboro office) at (503)-648-7163.
3. The Debtor-Creditor Section of the Oregon State Bar in cooperation with Legal Aid has a Bankruptcy Clinic. Anyone who is thinking about filing a consumer chapter 7 can come to the class but only those low income people who have separately made an appointment through the Legal aid office will receive individual help from their volunteer attorney after the class. For further information on the Bankruptcy Clinic, click here.View Details»
5. When may I file bankruptcy again?
As a general rule, there is no statutory prohibition against an individual filing another bankruptcy at any time. However, the court could enter such an order (for example if you are found to be abusing the system by repeatedly filing cases solely for purposes of delay). Additionally, the Bankruptcy Code [11 USC §109(g)] does provide that you may have to wait 180 days (6 months) to refile if either: (a) your previous case was dismissed for willful failure to abide by orders of the court (possible examples could include the failure to pay filing fees, to file required documents, or to complete the first meeting of creditors), or (b) if your case was dismissed on your request after a creditor filed a motion for relief from the automatic stay. In addition, there are certain prohibitions against receiving another chapter 7 discharge in specific circumstances. See 11 USC §727(8) and (9).
Subsection (8) prohibits entry of a chapter 7 discharge if you received a discharge in a chapter 7 or 11 case filed within eight (8) years of the filing of the new case.
Subsection (9) prohibits entry of a chapter 7 discharge if you received a discharge in a chapter 12 or 13 case commenced within six years of the chapter 7 filing unless payments under the plan totaled either 100% of allowed unsecured claims or at least 70% of the unsecured claims if the plan was proposed in good faith and was the debtor's best effort.
Moreover, under 11 USC §1328(f)(1) and (2), a discharge cannot be entered in a chapter 13 case if the debtor (1) has received a discharge in a chapter 7, 11, or 12 case filed within four years of the chapter 13 filing, or (2) has received a discharge in a chapter 13 case filed within 2 years of the new chapter 13 case.
For other things that should be considered before actually filing another bankruptcy petition, see Who Can Start a Bankruptcy? and What are the Consequences of Filing for Bankruptcy?
Only an individual may file a Chapter 13 petition. As with Chapter 12 cases, there are debt limitations in a Chapter 13 case. See 11 USC §109(e).View Details»
6. How much are the court fees to file a bankruptcy?
Click here for the current list of Bankruptcy Court filing fees.
You must normally pay all of the required fees at the time you file a bankruptcy petition. Except as provided below, if the debtor is an individual and cannot pay the full amount at the time of filing, the filing fee and administrative fee may be paid in up to three installments in an individual chapter 7 or chapter 11 filing, but in a chapter 12 or 13 filing, any balance owing must be paid within 45 days of filing and before the plan can be confirmed. To pay fees in installments, a fully completed Individual Debtor's Application To Pay Filing Fee In Installments (LBF 110) must be filed with the petition. Please be aware that anyone filing a chapter 11 or a chapter 13 must pay the minimum payment required by LBF #110.
If an application for payment of fees in installments is approved, you may not pay an attorney or petition preparer any further amounts of money for services rendered until all of the filing fees are paid.
The court also has the discretion to waive the filing fee for an individual chapter 7 debtor if his or her income is less than 150% of the official poverty line (as defined by the federal government) applicable to a family of the size involved, and is unable to pay that fee in installments. If you feel that a fee waiver is warranted, you must file with your petition a fully completed Application to Have the Chapter 7 Filing Fee Waived (Official Form 103B. If the judge denies your application for a fee waiver, he or she will normally enter an order requiring the payment of the filing fee in installments. In that case, failure to make the installment payments will result in a dismissal of the bankruptcy case.View Details»
7. Where can I obtain forms, and which ones do I need for filing?
If hiring an attorney is not possible, download Local Bankruptcy Form 100 (for individuals) or Local Bankruptcy Form 200 (for partnerships, corporations, etc.) which provides a list of all the forms necessary for each chapter, and detailed instructions on how to assemble the petition packets.
A petition packet is made up of two kinds of required forms, Official Forms (OF) and Local Bankruptcy Forms (LBF). The majority are OFs, (i.e., Voluntary Petition, Schedules A - J, Statement of Financial Affairs, etc.) which can be obtained electronically from the U.S. Courts' website. Click here to access Official Forms.
The rest are LBFs (e.g., Individual Debtor’s Application to Pay Fees in Installments, Chapter 12 and 13 Plans, etc.). Click here to access these and other LBFs.View Details»
8. Where do I file?
The District of Oregon Bankruptcy Court has two offices of the clerk. The specific location for filing bankruptcy petitions or other documents is determined by the county in which the debtor resides or has its principal place of business or principal assets. If the debtor resides in Benton, Coos, Curry, Douglas, Jackson, Josephine, Klamath, Lake, Lane, Lincoln, Linn, Marion or Polk counties, filings must be made in the Eugene office at 405 E 8th Ave #2600, Eugene, OR 97401. If the debtor’s address is in any other county, filings must be made in the Portland office at 1001 SW 5th Ave #700, Portland OR 97204. All documents relating to a case must be filed in the office where the case is pending. Filings may be made in person or by mail.View Details»
9. How many copies do I need to file at the court?
Petitions - The court does not require any additional copies of a petition filed with the court. However, you are encouraged to keep a copy for your records. If you want a copy of the petition stamped with the date of filing for your records, you need to provide an additional copy, as well as a self-addressed envelope with adequate postage if you are filing by mail.
Motions and other pleadings - The court does not require any additional copies of any document filed with the court. However, if any document related to a hearing is filed within three business days of the hearing, the filer of the document must notify the appropriate judge's chambers by telephone immediately after the filing of the document. Failure to notify chambers of the filing may result in the document not being read or considered. See LBR 9004-1(b).View Details»
10. How do I remove inaccurate information from my credit report, even if I have never filed bankruptcy?
The Bankruptcy Court does not report to the credit reporting agencies. The Bankruptcy Court has no control over credit reporting agencies.
The bankruptcy petition, schedules and other documents are public record and are available at the Clerk's Office and online through PACER with an account (see www.pacer.gov for more information). Credit reporting agencies regularly collect information from the petitions filed, and report the information on their credit reporting services.
You can request your credit report at no charge from each of the three reporting bureaus by visiting www.annualcreditreport.com (however, you will have to pay to see your credit score).
The three credit reporting agencies are:
Equifax Information Services LLC
If your credit report indicates that you have filed bankruptcy, but you have never filed bankruptcy in Oregon, you can request a document that states you have never filed a bankruptcy case in Oregon. This document is called a Certificate of Negative Filing. (You may want to contact the credit reporting agency first to determine if this is a document that they will accept from you.) To request a Certificate of Negative Filing, please mail a letter, with your full name and social security number, along with the certification fee of $11.00 and a self-addressed stamped envelope, to the Bankruptcy Court. If no record of a bankruptcy is found for you, the court will mail the Certificate of Negative Filing back to you.
There are a number of educational publications that the Federal Trade Commission has on its website (www.ftc.gov) to help consumers address credit and financial issues.View Details»
12. What happens after I file bankruptcy?
Upon filing the original petition with the Clerk’s Office, the court’s restraining order, called the “Automatic Stay”, immediately takes effect and prohibits virtually all creditors from taking any collection action against the debtor or the debtor’s property. Although the stay is automatic, creditors need to be advised of the stay. The court issues a notice to all creditors advising them of the filing of the bankruptcy, the case number, the automatic stay, the name of the trustee assigned to the case (if filed under chapter 7, 12, or 13), the date set for the meeting of creditors, the deadline (if any) set for filing objections to the discharge of the debtor and/or the dischargeability of specified debts, and whether and where to file claims. The exact information in the notice differs depending on the chapter under which the case is filed.
A meeting of creditors will usually be held within 20 to 40 days of filing unless the debtor lives in an outlying area, then it may be a little longer. The meetings set for Portland and Eugene will be held at the office of the U.S. Trustee. At the meeting the debtor is required to respond, under oath, to questions from the case trustee and to any questions that creditors may have relating to the financial condition of the debtor and the debtor’s assets. Attending this meeting is mandatory for the debtor but creditors need not attend.
In a chapter 7 case involving an individual debtor, the creditors generally have 60 days from the first date set for the meeting of creditors to object to the discharge of all the debtor’s debts and/or the dischargeability of a specific debt. If the deadline passes without any objections to the debtor’s discharge of all debts being filed, the court will issue the Discharge Order. If any objections to the dischargeability of specific debts are filed they will be heard by the court, but will not delay the granting of a discharge with respect to other debts. An objection to discharge or to the dischargeability of certain debts is considered a separate lawsuit (an adversary proceeding) within the bankruptcy and may result in a trial before the judge assigned to the case. Corporate and partnership chapter 7 debtors do not receive discharges. If there are no estate assets from which a dividend can be paid to the creditors, the trustee will prepare a report of no distribution and the case will be closed. If there are assets that are not exempt, funds will be available for distribution. The court will set claims deadlines and notify all creditors to file their proofs of claim. The trustee will proceed to collect the assets, liquidate them and distribute the proceeds to creditors. When the assets have been completely administered, the court will close the case.
In a chapter 13 case, creditors are given an opportunity to object to the plan. If no objection is filed by creditors or the trustee, the plan may be confirmed as filed. Once the plan is confirmed, the trustee will distribute the proceeds of the debtor’s plan payments to the creditors until the debtor completes the plan or the court dismisses or converts the case. Upon completion of the chapter 13 plan, the court will issue a Discharge Order, the trustee will prepare a Final Report and the case will be closed. If the debtor is unable to complete the plan through no fault of his/her own, and requests a “hardship discharge”, if certain requirements are met, a discharge may be granted.
In a chapter 12 case, the confirmation hearing must be concluded within 45 days of filing the plan. The court may consider dismissal of the case if a plan is not confirmed. Once the plan is confirmed, the trustee disburses the payments received from the debtor and makes sure the farming operation is running according to plan. Upon completion of the chapter 12 plan, the court will issue a Discharge Order, the trustee will prepare a Final Report and the case will be closed. If the debtor is unable to complete the plan through no fault of his/her own, and requests a “hardship discharge”, if certain requirements are met, a discharge may be granted.
In a chapter 11 case, the debtor will meet with the U.S. Trustee’s staff before the creditors’ meeting. At the meeting, the U.S. Trustee will go over the responsibilities and restrictions of the debtor-in-possession, explain the quarterly fees and monthly operating reports, and generally discuss the financial situation of the debtor and the scope of the anticipated plan of reorganization. Interested unsecured creditors are encouraged by the U.S. Trustee to form a Creditors’ Committee and to take an active part in moving the case along. A disclosure statement must be filed with the plan and approved by the court before votes for and against the plan can be solicited. After the estate has been fully administered, the court enters a final decree closing the case. A chapter 11 estate may be considered fully administered and closed before the payments required by the plan have been completed.View Details»
13. How do I know if a debt is secured, unsecured, priority or administrative?
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.View Details»
14. How do I change or correct information in the petition, schedules and statements I have already filed with the Clerk's Office?
The information contained in your petition, schedules and statement of financial affairs is submitted under penalty of perjury. Therefore, you must be certain that it is correct when you sign these documents. If, however, you later discover that something is inaccurate, the documents may be corrected by the filing, typically well before the case is closed, of an amendment with the Clerk’s Office where the petition was filed.
Petition information: If only changing the debtor’s address, use local form LBF 101D. If changing any other information on the three page petition, mark the petition “Amended”, highlight what is being changed, completely fill out the petition, and add all required signatures (for example, debtor and any joint debtor). Copies of the amended document must be sent to the case trustee and the U.S. Trustee. If debtor information on page one of the petition was changed, copies must also be sent to all creditors. The reason for this is the incorrect information was sent to the creditors when the notice of the meeting of creditors was mailed so they need to be informed if any of that information was incorrect or incomplete.
Schedules or Statement of Affairs: To change information contained in the schedules or Statement of Financial Affairs, the document must be labeled “Amended” and be accompanied by a signed declaration under penalty of perjury.
Schedules D, E, F, E/F, G or H: LBF 728 accompanied by a fee per the Court Fees List, must be submitted to amend Schedules D, E, F, E/F, G or H after notice to creditors has been sent out in the case. LBF 728 contains certain instructions which must be strictly followed in order for the amendment to be processed properly. For instance, if adding creditors to Schedule E/F, clearly mark the schedule “Amended”, put Add Creditors so it is clear exactly what you are doing, and then list only the creditors being added. A supplemental creditor mailing list showing only the creditors whose information is being changed by the amendment is required.
Service: Copies of all amendments must be sent to the United States Trustee and the case trustee. Some amendments (to Schedules D, E, F, E/F, G or H) must be served upon the creditors affected by the amendment as set out in LBF 728. A signed certificate of service showing to whom the amendment was mailed and the date of mailing is to be included.View Details»
15. How do I obtain a Proof of Claim form?
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.View Details»
16. How do I get a copy of all or part of the record of a court proceeding or get a written transcript of it?
The court uses digital recording equipment to electronically create a record of a court proceeding in the Portland and Eugene locations. For hearings outside of these locations, for example hearings held in Bend and Pendleton, a contract court reporter is employed to create a verbatim record of proceedings.
1. Digitally recorded proceedings:
a. Transcript of Hearing - complete local form LBF #335, Hearings Transcript Order Form. The transcriptionist will contact you to give you an estimate of the cost and to arrange for payment.
b. Copy of Hearing on CD - Complete local form LBF #335.5, Hearing CD Order Form, and submit the form, along with a check for the required deposit made payable to the “Clerk, US Bankruptcy Court” and a self-addressed, stamped envelope for the CD (which holds approximately 45-60 minutes of hearing time) to the appropriate Clerk’s office. The court will make a duplicate CD and send it to you in the envelope provided.
2. Court reporter recorded proceedings:
a. For any Eugene hearings prior to 1/1/09, contact the court at 541-431-4000 to obtain court reporter contact information. Hearings after that date are digitally recorded.
b. For Medford hearings prior to 4/4/2010 and Klamath Falls hearings, contact Eileen Leddy at 541-479-7277. Hearings after that date are digitally recorded.
c. For Bend and Pendleton hearings, call the courtroom deputy at 503-326-1500 to obtain court reporter contact information. Bend hearings held via telephone are digitally recorded.View Details»
17. A company or person who owes us money has filed bankruptcy. What do we do?
The automatic stay in bankruptcy prohibits most creditors from taking any action to enforce a debt, even if the debt or the creditor are not included in the schedules. The automatic stay is complex, and creditors should consult an attorney before proceeding.
If you have been listed as a creditor in a bankruptcy case and if the case is an “asset” case, you will receive a notice of the deadline for filing a proof of claim. All chapter 11, 12 and 13 cases are “asset” cases.
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. 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.
To file a proof of claim (ePOC), click here.View Details»
18. What does it mean if a case is dismissed?
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.View Details»
19. My ex-spouse has filed bankruptcy. He/she has listed me as a co-signer on a scheduled debt. What should I do? Does my divorce decree protect me?
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.View Details»
20. I filed a proof of claim, why am I not getting paid?
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.View Details»
21. I am getting mail from the court and don’t know why or who this person/company is. What do I do with these documents/notices?
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.View Details»
22. What can I do if a creditor keeps trying to collect money after I have filed bankruptcy?
A creditor that continues to attempt to collect a debt after the bankruptcy is filed may be in violation of the automatic stay. You should immediately notify the creditor in writing that you have filed bankruptcy, and provide them with either the case number and filing date or a copy of the petition that shows it was filed. If the creditor still continues to try to collect, the debtor may be entitled to take legal action against the creditor to obtain a specific order from the court prohibiting the creditor from taking further collection action and, if the creditor is willfully violating the automatic stay, the court can award the debtor actual damages (including costs and attorney fees) and, in appropriate circumstances, punitive damages. Any such legal action brought against the creditor will be complex and will normally require representation by a qualified bankruptcy attorney.View Details»
23. Do I need to send a copy of the petition to anyone else?
It is your responsibility to do what you think is necessary to notify the appropriate people. A few days after the date of filing, the Clerk’s Office will send a notice of your filing to all the creditors you have listed on the “creditor mailing list” (the list of creditor names and addresses that you must file with your petition). You are responsible for being sure you have listed all your creditors and that their complete street address, city, state and zip code is accurate.
Local Bankruptcy Form #104 sets out all the requirements for preparation of your creditor mailing list in a format that can be accurately entered into the court’s system.View Details»
24. What is a §341(a) meeting or meeting of creditors? What can I expect will happen there?
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.
To view a video of a trustee conducting a 341(a) meeting of creditors, click here.View Details»
25. Who do I notify about a possible fraudulent filing?
The Office of the United States Trustee reviews complaints about possible fraudulent filings and, if appropriate, notifies the U.S. Attorney for further investigation. For more information contact:
For cases filed in Portland:
Office of the US Trustee
620 SW Main #213
Portland OR 97205
Phone: (503) 326-4000
For cases filed in Eugene:View Details»
Office of the US Trustee
405 E 8th Ave #1100
Eugene OR 97401-2706
Phone: (541) 465-6331
26. What are exemptions?
Debtors are entitled to protect their equity in certain property, known as "assets,” from becoming part of your bankruptcy estate, and will not be used to pay creditors through your bankruptcy case.
The types of exemptions and how much of this property is exempt are determined by federal law (the Bankruptcy Code) or state law.
Note that if the unsecured value of an asset exceeds the value of your exemption, then it can be sold by the trustee and only the exempt amount returned to you.
Additionally, if an item is otherwise exempt, it does not eliminate the interests of a secured creditor. For example, if you own a car or a house that was purchased with a loan from a bank or credit union and the debt is not paid off, your equity (market value less the balance owing) is exempt up to the amount allowed by law, but you will still have to continue to pay for the car or house or the creditor can repossess it.
Debtors filing in the District of Oregon may elect to use the exemptions provided by federal law or those provided by state law (but not both). In other words, all of a debtor's claims of exemption must come entirely from either the state or federal list.
For more information, please read the section entitled "Property You Can Keep (Exemptions)" in the document below.View Details»
27. How do I get a hearing date?
Each judge maintains an individual hearings calendar. The procedure for obtaining a hearing date depends upon the nature of the hearing.
1. The §341(a) hearing ("meeting of creditors") is automatically scheduled by the Court shortly after the filing of the bankruptcy petition. The date and time of such hearing is contained in the notice sent by the Court to the debtor and to all creditors. The date and time of a confirmation hearing in a Chapter 13 case is likewise contained in that notice.
2. To schedule a hearing resisting a motion for relief from stay in a Chapter 7 or 13 case, or to schedule a hearing resisting a motion for relief from co-debtor stay in a Chapter 13 case, review the requirements set forth in LBF #720 (Notice of Motion).
3. To schedule a hearing regarding a motion to extend or impose the automatic stay, to object to a debtor's attempt to obtain an extension of the automatic stay to cure a pre-petition residential rental deficiency, or to object to a landlord's attempt to obtain a termination of the automatic stay to continue with eviction proceedings, review the requirements of LBF #721.3 (Procedures Re Motions/Objections To Extend/Impose 11 USC §362 Automatic Stay Pursuant To §362(c),§362(l),§362(m) or §362(n)).
4. To obtain hearing dates for any other purpose (including hearings on relief from stay motions in Chapter 11 or 12 cases and relief from co-debtor stay motions in Chapter 12 cases), contact the calendar clerk for the judge assigned to the case.View Details»
28. Where do I get a copy of the Local Rules for the Bankruptcy Court (also known as LBRs or Local Bankruptcy Rules)?
29. How do I obtain the required credit counseling before I file?
For a list of approved agencies, see the U.S. Trustee's website at http://www.usdoj.gov/ust/eo/bapcpa/ccde/ index.htm . The briefing must be given within 180 days before the bankruptcy filing. You must also complete an instructional course concerning personal financial management after your case is filed, and file a certificate of completion with the court.View Details»
30. What is an adversary proceeding and how do I file a complaint?
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 B1040 (which is identical to Official Form 1040).
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.View Details»
31. How do I serve an adversary proceeding Summons and Complaint, motion or a Chapter 12 or 13 plan?
Service of process is a crucial part of the judicial process. If service is not made according to the rules, the validity of any outcome may be called into doubt. If you are unsure how to serve a document, consider seeking legal advice.
I. SERVICE OF SUMMONS IN ADVERSARY PROCEEDING
Proof of Service must show that the summons and complaint were served within 7 days of issuance of the summons. The Certificate of Service form to be used is attached to the summons issued by the Court. The method of service depends upon whom the defendant is and where located as set out below in Section IV.
II. SERVICE OF CHAPTER 13 PLAN
Proper service of the Chapter 13 Plan requires both of the following:
A. Completed Certificate of Service on Creditors listed in ¶2(b)(1), ¶2(b)(2), and ¶6. The Certificate of Service located on the bottom of the last page of the Plan showing service on all creditors listed in ¶2(b)(1), 2(b)(2), and ¶6 of the Plan must be completed as follows:
1. Creditors in those paragraphs, other than an insured depository (see point II.A.2.) must be listed on the mailing list in care of a person or entity authorized to be served as set out below in Section IV. with that person’s position clearly indicated as appropriate (e.g., if corporation listed, service on registered agent or on an officer; if partnership or unincorporated assoc., on a managing or general agent).
2. An insured depository institution (e.g., credit union, bank or savings and loan) listed in those paragraphs must be served by certified mail as set out below in Section IV.A.9.
3. The date of service blank in point (b) of the Plan’s Certificate of Service is filled in only if there are any insured depository institutions listed.
B. Separate List of ¶2(b)(1), ¶2 (b)(2), and ¶6 Creditors. A separate list, including the names and addresses of all such creditors served, must be attached to the Plan showing as to ¶2(b)(1), ¶2(b)(2), and ¶6 creditors: (a) those entities served via matrix listing (i.e., creditors other than an insured depository institution), and (b) those entities served via certified mail (i.e., an insured depository institution such as a credit union, bank or savings and loan).
NOTE: Any time the IRS is listed as a creditor under ¶2(b)(1) or ¶2(b)(2) of the Plan, be sure all of the following 3 entities are served and listed on the matrix:
(1) IRS (PO Box 7346, Philadelphia, PA 19101-7346);
(2) U.S Attorney for District of Oregon; and
(3) U.S. Attorney General, Washington D.C.
III. SERVICE OF CHAPTER 12 PLAN
Proper service of the Chapter 12 plan requires both of the following:
A. Creditors Listed in ¶2(b)(1) and ¶2(b)(2). The Certificate of Service located on the bottom of the last page of the Plan showing service on all creditors listed in ¶2(b)(1) and ¶2(b)(2) of the Plan must be completed as follows:
1. Creditors in those paragraphs, other than an insured depository (see point II.A.2.) must be listed on the mailing matrix in care of a person or entity authorized to be served as set out below in Section IV. with that person’s position clearly indicated as appropriate (e.g., if corporation listed, service on registered agent or on an officer; if partnership or unincorporated assoc., on a managing or general agent).
2. An insured depository institution (e.g., credit union, bank or savings and loan) listed in those paragraphs must be served by certified mail as set out below in Section IV.A.9.
3. The date of service blank in point (b) of the Plan’s Certificate of Service is filled in only if there are any insured depository institutions listed.
B. Separate List of ¶2(b)(1) and ¶2(b)(2) Creditors. A separate list, including the names and addresses of all such creditors served, must be attached to the Plan showing as to ¶2(b)(1) and ¶2(b)(2) creditors: (a) those entities served via matrix listing (i.e., creditors other than an insured depository institution), and (b) those entities served via certified mail (i.e., an insured depository institution such as a credit union, bank or savings and loan).
NOTE: If the I.R.S. is a creditor listed in ¶2(b)(1) or ¶2(b)(2) of the Plan, be sure all of the following three entities are served and listed on the matrix:
(1) I.R.S. (PO Box 7346, Philadelphia, PA 19101-7346);
(2) U.S. Attorney for the District of Oregon; and
(3) U.S. Attorney General, Washington, D.C.IV.
IV. RULES GOVERNING SERVICE OF PROCESS
Service of process in Bankruptcy Court is governed by the provisions of Federal Rules of Bankruptcy Procedure Rule (FRBP) 7004 and the Oregon Rules of Civil Procedure (ORCP) Rule 7. To adequately complete service of process, a dated and signed certificate stating that the documents were properly served is filed with the court. What is unique about the Bankruptcy Court service requirements is that instead of personal service, service by mail is authorized.
A. Service by First Class Mail.
FRBP 7004 authorizes service within the United States by first class mail, postage prepaid as follows:
1. Individuals: Upon an individual (other than an infant or incompetent) by mailing to the individual’s dwelling or usual place of abode or to the place where the individual regularly conducts a business or profession. A PO Box is not acceptable unless the person being served is the debtor (see item 7. below).
2. Infant or Incompetent Person:Upon an infant or incompetent person, by serving the parent, guardian, conservator, or guardian ad litem at such person’s dwelling house or usual place of abode or to the place where the individual regularly conducts a business or profession.
3. Corporation/Partnership/Unincorporated Association: Upon a domestic or foreign corporation or partnership or other unincorporated association, by mailing to the registered agent or to the attention of an officer or a managing or general agent. A title without a name is not acceptable; and, unless a person certifies that “x” (name without a title) is an authorized agent of the corporation for the acceptance of service, a name without a title is not acceptable. [NOTE: also see Service On Attorney in item C. below]. Caveat: Be aware of additional requirements found in ORCP Rule 7 and ORS 60.121.
NOTE: For corporations, partnerships, and unincorporated associations authorized to conduct business in Oregon, the name and address of the registered agent can usually be found on the Oregon Secretary of State’s website.
4. United States: Upon the United States, by mailing to the Civil Process Clerk at the office of the U.S. Attorney for the district in which the action is brought and by mailing to the Attorney General at Washington, DC. In any action attacking the validity of an order of an officer or an agency of the U.S. not made a party, by also mailing to such officer or agency.
5. Officer/Agency of U.S.: Upon an officer or agency of the U.S., by mailing to the U.S. Attorney for the district in which the action is brought and by mailing to the Attorney General at Washington, DC and also to the officer or agency. If the agency is a corporation the mailing must also follow paragraph 3 (e.g., the RTC or FDIC).
6. State or Municipal Corporation or Other Governmental Organization: Upon a state or municipal corporation or other governmental organization, by mailing to the person or office upon whom process is prescribed to be served by the law of the state in which service is made.
(a) For the State of Oregon, the Oregon Attorney General must be served. [FRBP 7004(b)(6); ORCP 7D(3)(c)]
(b) For a County, City or other public corporation, service must be on an officer, director, managing agent or attorney (e.g., County Counsel, City Attorney, etc. by name).
7. Debtor: Upon the debtor (until the case is dismissed or closed) by mailing to the address shown in the petition or to any other such address as the debtor may designate in a filed writing (e.g., the address shown in ECF/PACER) and if the debtor is represented by an attorney, to the attorney at the attorney’s mailing address. A PO Box for a debtor is acceptable if that is the address supplied to the court by the debtor.
8. U.S. Trustee: Upon the U.S. Trustee, by mailing to an office of the U.S. Trustee or another place designated by the U.S. Trustee in the district where the case is pending
9. Insured Depository Institution: Upon an insured depository institution, by mailing certified mail addressed to an officer of the institution unless the institution has appeared by its attorney, in which case the attorney may be served by first class mail, or the institution has waived in writing its entitlement to service by certified mail by designating an officer to receive service.
B. Service by Publication.
If a party cannot be served as previously noted, FRBP 7004(c) permits service by at least one publication, in a manner and form as the court may direct.
C. Service On Attorney.
Service on an attorney is permitted only in the following circumstances:
1. If the attorney is the registered agent of the party being served;
2. If the attorney has formally appeared in the matter;
3. If the attorney has not formally appeared in the matter but agrees to accept service on behalf of his/her client.
D. Service on Individuals in Foreign Country. [FRCP Rule 4(f) made applicable by FRBP 7004 (a)].
1. Unless there is a waiver filed, service must be by any internationally agreed means reasonably calculated to give notice such as those means authorized by the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents.
2. If there is no internationally agreed means of service then service is by:
a. Any manner prescribed by the law of the foreign country for service in any of its courts of general jurisdiction.
b. As directed by the foreign authority in response to a letter rogatory or letter of request.
c. Unless prohibited by law of the foreign country:
(1) by personal delivery, or
(2) any form of mail requiring a signed receipt (note: to be mailed by the clerk of court to the party to be served).
d. By other means not prohibited by international agreement as may be directed by the court.
V. RULES GOVERNING SERVICE OF MOTIONS
Service of motions in contested matters is governed by FRBP 9014(b), which provides that a “motion shall be served in the same manner provided for service of a summons and complaint by Rule 7004.” See Section IV above for rules regarding service of a summons and complaint.View Details»
32. What is a bankruptcy discharge and what is the difference between denial of discharge and denial of the dischargeability of an individual debt?
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 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 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.View Details»
33. What is an "Automatic Stay"?
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.View Details»
34. What is a "trustee"?
The trustee in a bankruptcy case is the representative of the estate.
In chapter 12 or 13 cases, the appointed trustee receives the payments from the debtor and disburses those funds to the debtor’s creditors according to the debtor’s plan which has been approved by the court.
In a chapter 7 case, the appointed trustee examines the debtor at the §(341)a Meeting of Creditors in an effort to locate and take charge of the debtor’s nonexempt assets, if there are any. The trustee will then take whatever steps are necessary to reduce those assets to cash. Since there generally is not enough money to pay all the creditors in full, the trustee, under the supervision of the office of the US Trustee, disburses the funds according to the priorities set out in 11 USC §507.
To be eligible to serve as a trustee, the individual or corporation must be competent to perform the duties of trustee and, in chapter 7, 12, or 13, must reside or have an office in the judicial district or adjacent to the district in which the case is pending. The trustee must also maintain an insurance bond which guarantees faithful performance of the trustee’s official duties.
Promptly after a case is filed with the court, the United States Trustee appoints a disinterested person who is a member of the panel of trustees established pursuant to 28 USC §586.
The compensation of a trustee is set by statute [11 USC § 326].View Details»
35. What documents do I need to provide to the trustee administering the case?
36. How do I find out who the trustee is in a case?
The trustee's name and address is printed on the first notice the court sends out, the Notice of the 341(a) Meeting of Creditors. That information is also available from the following sources:
1. VCIS (Voice Case Information Service) - an automated information service available 24 hours a day from any touch-tone telephone by calling 866-222-8029. You can obtain case information following the instructions given by speaking or by using the numbers on the keypad of your telephone. You may either say "Oregon" or you may press pound [#], then "27" for Oregon.
2. PACER (Public Access to Court Electronic Records) - Access to a mirror image of the court's database from your personal computer which is available 24 hours a day via the internet at https://ecf.orb.uscourts.gov. You must sign up for this service and there is a small fee. For more information call the PACER Service Center at 1-800-676-6856 or visit their website at www.pacer.gov.
3. Computer Terminals in the lobby of each office of the Clerk.
4. By calling the court and speaking to the operator during the court's office hours. For the Portland office call (503) 326-1500, and for the Eugene office call (541) 431-4000, and then press "O" for the operator.View Details»
37. What is a reaffirmation agreement?
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 2400A (preferred by the court) or Official Form 2400A/B Alt and in either case attach Official Form 427 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. The court will not take any action to approve a timely filed reaffirmation agreement until such time as the debtor is eligible for immediate discharge. The court will not take any action to approve a reaffirmation agreement that is filed in a closed case or filed after a discharge order has been entered in a case.
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.View Details»
38. How do I file a motion for relief from the automatic stay?
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.View Details»
39. What is the function of the U.S. Trustee and where is their office located?
The Office of the U.S. Trustee (often referred to as the UST) is an Executive Branch agency that is part of the Department of Justice. Its function is to oversee the administration of bankruptcy cases. The U.S. Trustee establishes and supervises a panel of private trustees in chapter 7 cases, appoints standing trustees in chapter 12 and 13 cases, and appoints case trustees in chapter 11 cases. The U.S. Trustee monitors the administration of chapter 11 cases by, among other things, reviewing disclosure statements and plans of reorganization, and monitoring post-confirmation plan performance. The U.S. Trustee also monitors bankruptcy cases for possible fraud which may be reported to the United States Attorney for investigation and prosecution.
If you wish additional information regarding either the trustee program in general or individual trustees, you should contact the Office of the U.S. Trustee at:
For cases filed in Portland: 620 SW Main St Rm 213, Portland OR 97205 (503) 326-4000
For cases filed in Eugene: 405 E 8th Ave #1100, Eugene OR 97401-2706 (541) 465-6331View Details»
40. How do I get admitted to practice in the Bankruptcy Court or apply to appear in a case pro hac vice?
Admission to practice - The Bankruptcy Court does not have its own bar. To practice in the Bankruptcy Court you need to be admitted to the federal bar of the United States District Court for the District of Oregon pursuant to District Court Local Rule 83. Contact the United States District Court at 503-326-8061 OR 503-326-8021 for forms and requirements.
Appear pro hac vice - An attorney who neither resides nor maintains an office in the District of Oregon can request to participate in a case by submitting an application on a fully completed Local Bankruptcy Form LBF #120. There is no admission fee charged for filing such an application in the Oregon Bankruptcy Court.View Details»
41. I filed an objection to the Plan, why was the plan still confirmed?
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).View Details»
42. What is the wording for a certificate of service?
The standard certificate of service states:
I certify that on (insert date) copies of (insert name of documents you are serving) were mailed to: * (list names and addresses of parties on whom the documents are being served and be sure to include the trustee, and U.S. Trustee).
_______________________________ Signature of person doing the mailing
*Note: in this space you may state: “the parties whose names and addresses are listed on the attached.” and attach a copy of the mailing list you used.
Mailing list: A mailing list which shows the names and addresses of all creditors and interested parties in the case is available from the clerk’s office upon request. It is formatted so that it can be copied onto labels.View Details»
43. What is a bankruptcy "estate"?
A bankruptcy “estate” is defined in Title 11 of the United States Code § 541. It is a very broad definition and includes all legal or equitable interests of the debtor in property, wherever located, as of the commencement of the case. It also includes any property in which the debtor has an ownership interest that is recovered by the trustee if it was merely out of the possession of the debtor. In certain circumstances, property acquired by the debtor within 180 days after the filing of the case may also be considered part of the bankruptcy “estate”.
An attorney should be consulted if there is any question as to whether specific property will be included in the bankruptcy “estate” and the exemptions available to the debtor which may exclude certain property.View Details»
44. What are the consequences of filing for bankruptcy?
Depending on a debtor's financial condition and reasons for filing, the consequences of filing for bankruptcy protection may outweigh the benefits. The timing of the filing may be very important, and those considering bankruptcy should be aware of the following:
1. Filing for bankruptcy protection is not free. How much are the court fees to file a bankruptcy?
2. Not all debts are dischargeable. For example, most domestic support obligations, most tax debts, and most student loan debts are not dischargeable. See response to FAQ (What is a bankruptcy discharge and what is the difference between denial of discharge and denial of the dischargeability of an individual debt?)
3. Within 14 days of the filing of a bankruptcy petition, schedules of the debtor's assets and liabilities must be filed with the Court. Failure to timely file the appropriate schedules will result in a dismissal of the bankruptcy case, and may bar the debtor from filing again for 180 days (6 months).
4. The Bankruptcy Code imposes time limitations on successive discharges as follows:
A. If a Chapter 7 or 11 discharge is entered by the Court, the debtor is prohibited from being granted another discharge in a later-filed Chapter 7 case (filed on or after 10/17/05) filed within eight years of the filing of the first case.
B. If a Chapter 7 or 11 discharge is entered by the Court, the debtor is prohibited from being granted another discharge in a later-filed Chapter 7 case (filed prior to 10/17/05) filed within six years of the filing of the first case.
C. If a Chapter 7, 11, or 12 discharge is entered by the Court, the debtor is prohibited from being granted another discharge in a later-filed Chapter 13 case (filed on or after 10/17/05) filed within four years of the filing of the first case.
D. If a Chapter 13 discharge is entered by the Court, the debtor is prohibited from being granted a discharge in a later-filed Chapter 13 case (filed on or after 10/17/05) filed within two years of the filing of the first case.
E. If a Chapter 12 or 13 discharge is entered by the Court, the debtor is prohibited from being granted a discharge in a later-filed Chapter 7 case filed within six years of the filing of the first case, unless (a) the debtor paid 100% of allowed unsecured claims in the Chapter 12 or 13 case, or (b) the debtor paid at least 70% of the allowed unsecured claims in the Chapter 12 or 13 case, the plan was proposed in good faith, and was the debtor's best effort.
5. Submission of fraudulent information, or commission of certain acts by the debtor can also be grounds for the denial of discharge of an individual debt, or for the denial of the discharge of all debts, and can also give rise to criminal charges. See response to FAQ(What is a bankruptcy discharge and what is the difference between denial of discharge and denial of the dischargeability of an individual debt?).
6. In some instances, transfers of property and/or payments made to (1) general creditors within ninety days prior to the filing of a bankruptcy petition, and/or (2) relatives within one year prior to the filing of a bankruptcy petition, are subject to being recovered by the bankruptcy trustee.
7. If the debtor is seeking to discharge utility bills from a utility company currently providing service to the debtor, the utility company may terminate services if the debtor does not pay a reasonable security deposit or provide other adequate assurance of payment within 20 days of the filing of the bankruptcy petition.
8. Depending on the timing of the filing of the bankruptcy petition, and what chapter of bankruptcy is filed, the debtor can be required to turn over state and federal tax refunds to the bankruptcy trustee.View Details»
45. Who can start a bankruptcy?
Any person, and almost any partnership, corporation, or business trust may file a bankruptcy petition. Certain types of entities, such as banks and insurance companies, may not be eligible for bankruptcy protection, but almost all other entities who are not individuals can file under either Chapter 7, Chapter 11, or Chapter 12. A business that is not a partnership, corporation, or business trust, cannot file a separate bankruptcy petition on its own, but must be filed as an individual bankruptcy under the name(s) of the owner(s).
If the person or entity who owes the debts (the debtor) files the petition, it is called a voluntary petition. A voluntary petition can be filed under Chapter 7, 9, 11, 12, or 13
The people or entities that are owed money (the creditors) may also have the right to file a petition against a person or entity which owes them money, and is not paying. This is called an involuntary petition. There are certain restrictions upon the creditors ability to file an involuntary petition. In an involuntary case, the debtor is allowed to contest the petition and contend that it should not be in bankruptcy. The Court can impose penalties against the creditors who filed the case if the debtor proves that the involuntary petition should not have been filed. An involuntary petition cannot be filed against joint debtors, and can be filed only under Chapter 7 or Chapter 11 (11 USC §303).
Only a family farmer or family fisherman may file a Chapter 12 petition. In addition, there are certain debt limitations in a Chapter 12 case. See 11 USC §101(18) and (19A).View Details»
46. I received a notice that I have a "deficient" pleading, what does that mean?
A deficient pleading is one that is incomplete or incorrectly done in some way. The notice you received should tell you specifically what needs to be done to correct the document so that it can be filed and also gives the deadline for filing. When you make the corrections, you will need to attach a copy of the “deficiency” notice to the documents and resubmit them for filing before the filing deadline.View Details»
47. How can I learn more about bankruptcy?
Bankruptcy Basics provides basic information to debtors, creditors, court personnel, the media, and the general public on different aspects of the federal bankruptcy laws. It also provides individuals who may be considering bankruptcy with a basic explanation of the different chapters under which a bankruptcy case may be filed and answers some of the most commonly asked questions about the bankruptcy process.View Details»
48. I received two notices for the meeting of creditors. Do I have to attend both meetings?
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.
A meeting of creditors will usually be held within 20 to 40 days of filing, unless the debtor lives in an outlying area, in which case it may be a little longer. The meetings set for Portland and Eugene will be held at the office of the U.S. Trustee. At the meeting the debtor is required to respond, under oath, to questions from the case trustee and to any questions that creditors may have relating to the financial condition of the debtor and the debtor’s assets. Attending this meeting is mandatory for the debtor but creditors need not attend.View Details»
49. What is the judgment interest rate?
On all judgments entered on and after December 21, 2000, interest is calculated from the date of the entry of the judgment at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of the judgment.
As of July 27, 2017, this information is available at the following Federal Reserve Bank of St. Louis website link:https://fred.stlouisfed.org/release/tables?rid=18&eid=290&od=. The applicable rate is listed under U.S. government securities - Treasury constant maturities - 1-year. The listed rate is applicable to a judgment entered in the week after the week ending on the date in the Period column. Rates for prior weeks can be found by selecting a different Period date at the top of the table. Alternatively, and also as of July 27, 2017, you can find this information by following the instructions in the second Technical Q&A at the following Federal Reserve Board website link: https://www.federalreserve.gov/releases/h15/h15_technical_qa.htm .View Details»
50. What is a redemption?
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.View Details»
51. What if I don't agree with an Order entered in a case?
A Notice of Appeal may be filed after an Order or Judgment has been entered in a case. In a Notice of Appeal, the party filing the Appeal, the appellant, wishes to reverse the Order or Judgment granted in favor of the other party, the appellee. When an Appeal is filed in the District of Oregon, the matter is automatically referred to the Bankruptcy Appellate Panel (BAP) unless a party timely objects to having the matter heard by the BAP. In that case the matter will be heard by the District Court. Note that when an appeal is filed, the order or judgment appealed from remains in effect unless the court that issued the order or judgment, or the court that is reviewing it, orders that it be stayed.
THERE ARE STRICT DEADLINES AND RULES TO FOLLOW WHEN FILING AN APPEAL. These Rules are found in the Federal Rules of Bankruptcy Procedure (Fed.R.Bankr.P.) Rules 8000 - 8020, District Court Local Rule (LR) 2200, Local Bankruptcy Rules (LBR) 8001-1. through 8006-1. and the Federal Rules of Appellate Procedure (F.R.App.P.). The filing fee for a Notice of Appeal is found on the Court Fees List (LBF #115).View Details»
52. What is the Chapter 7 "Means Test"?
As part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 which became effective on October 17, 2005, a "means test" was instituted to determine whether or not a debtor is entitled to a Chapter 7 discharge, or whether such debtor must convert the case to one under another chapter of the Bankruptcy Code. The basic purpose of the means test is to compare monthly income and expenses to determine whether or not a Chapter 7 discharge would constitute an "abuse" of the provisions related to Chapter 7 in the Bankruptcy Code.
Official Form 122A-1, Chapter 7 Statement of Your Current Monthly Income, requests information regarding your gross monthly income for six months prior to the filing of your bankruptcy case. However, some types of income (social security benefits, etc.) are not included for the means test calculation. Generally, if your average gross monthly income is below the median income in Oregon for your family size, or if your debts are not primarily consumer debts, your case will not be presumed to be an abuse. Even if your case is not a presumed abuse, your case could be dismissed if the Court finds that it was filed in bad faith, or if your financial situation demonstrates abuse.
If your income is above the median for your family size and your debts are primarily consumer debts, you will need to complete Official Form 122A-2, Chapter 7 Means Test Calculation. Allowable expenses are primarily determined by IRS guidelines as opposed to actual spending. Your case may be presumed to be an abuse if you have a specified amount of income left over after expenses are deducted.
You may still be entitled to a Chapter 7 discharge even if your case is presumed to be an abuse, particularly if the figures in the "means test" form do not accurately represent your current circumstances (e.g., you lost your job or have a lower paying job). If a presumption of abuse exists, some party (usually the U.S. Trustee or a creditor) may file a motion seeking a dismissal of your case. If a motion is filed, and you are unable to rebut the presumption of abuse, the Court generally will enter an order allowing you a certain amount of time to convert your case to Chapter 13, or the case will be dismissed.
If your debts are not primarily consumer debts or you are exempt from the means test due to qualifying military service, you will need to complete Official Form 122A-1Supp, Statement of Exemption from Presumption of Abuse Under §707(b)(2).View Details»
53. What does the case number tell me?
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.
14-61254-tmr7 would be a case filed in Eugene in 2014, which is assigned to Judge Renn. 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.View Details»
54. Notice to Individual Consumer Debtor(s) Under Section 342(b) of the Bankruptcy Code
In accordance with §342(b) of the Bankruptcy Code, this notice to individuals with primarily consumer debts: (1) Describes briefly the services available from credit counseling services; (2) Describes briefly the purposes, benefits and costs of the four types of bankruptcy proceedings you may commence; and (3) Informs you about bankruptcy crimes and notifies you that the Attorney General may examine all information you supply in connection with a bankruptcy case. You are cautioned that bankruptcy law is complicated and not easily described. Therefore, you should seek the advice of an attorney to learn of your rights and responsibilities under the law should you decide to file a petition with the court. If you need an attorney, the Oregon State Bar's Lawyer Referral Service number is 1-800-452-7636. Court employees are prohibited from giving you legal advice.
Notices from the bankruptcy court are sent to the mailing address you list on your bankruptcy petition. In order to ensure that you receive information about events concerning your case, Bankruptcy Rule 4002 requires that you notify the court of any changes in your address. If you are filing a joint case (a single bankruptcy case for two individuals married to each other), and each spouse lists the same mailing address on the bankruptcy petition, you and your spouse will generally receive a single copy of each notice mailed from the bankruptcy court in a jointly-addressed envelope.
A. Services Available from Credit Counseling Agencies
With limited exceptions, §109(h) of the Bankruptcy Code requires that all individual debtors who file for bankruptcy relief on or after October 17, 2005 receive a briefing that outlines the available opportunities for credit counseling and provides assistance in performing a budget analysis. The briefing must be given within 180 days before the bankruptcy filing. The briefing may be provided individually or in a group (including briefings conducted by telephone or on the Internet), and must be provided by a nonprofit budget and credit counseling agency approved by the United States Trustee. For a list of approved agencies, see the U.S. Trustee's website. Each debtor in a joint case must complete the briefing.
In addition, after filing a bankruptcy case, an individual debtor generally must complete a financial management instructional course before he or she can receive a discharge. Also see the U.S.Trustee's website for a list of approved financial management instructional courses.
B. The Four Chapters of the Bankruptcy Code Available to Individual Consumer Debtors
Chapter 7: Liquidation (See Court Fees List for filing fee)
1. Chapter 7 is designed for debtors in financial difficulty who do not have the ability to pay their existing debts. Debtors whose debts are primarily consumer debts are subject to a "means test" designed to determine whether the case should be permitted to proceed under Chapter 7. If your income is greater than the median income for your state of residence and family size, in some cases, the United States trustee, the trustee, or creditors have a right to file a motion requesting that the court dismiss your case under §707(b) of the Code. It is up to the court to decide whether the case should be dismissed.
2. Under Chapter 7, you may claim certain property as exempt under governing law. A trustee may have the right to take possession of and sell the remaining property that is not exempt and use the sale proceeds to pay your creditors.
3. The purpose of filing a Chapter 7 case is to obtain a discharge of your existing debts. If, however, you are found to have committed certain kinds of improper conduct described in the Bankruptcy Code, the court may deny your discharge and, if it does, the purpose for which you filed the bankruptcy petition will be defeated.
4. Even if you receive a general discharge , some particular debts are not dischargeable under the law. Therefore, you may still be responsible for most taxes and student loans; debts incurred to pay nondischargeable taxes; domestic support and property settlement obligations; most fines, penalties, forfeitures, and criminal restitution obligations; certain debts which are not properly listed in your bankruptcy papers; and debts for death or personal injury caused by operating a motor vehicle, vessel, or aircraft while intoxicated from alcohol or drugs. Also, if a creditor can prove that a debt arose from fraud, breach of fiduciary duty, theft, or from a willful and malicious injury, the bankruptcy court may determine that the debt is not discharged.
Chapter 11: Reorganization (See Court Fees List for filing fee)
Chapter 11 is designed for the reorganization of a business but is also available to individual debtors. Its provisions are quite complicated, and any decision by an individual to file a Chapter 11 petition should be reviewed with an attorney.
Chapter 12: Family Farmer or Fisherman (See Court Fees List for filing fee)
Chapter 12 is designed to permit family farmers and fishermen to repay their debts over a period of time from future earnings and is similar to Chapter 13. The eligibility requirements are restrictive, limiting its use to those whose income arises primarily from a family-owned farm or commercial fishing operation.
Chapter 13 : Repayment of All or Part of the Debts of an Individual with Regular Income ( See Court Fees List for filing fee)
1. Chapter 13 is designed for individuals with regular income who would like to pay all or part of their debts in installments over a period of time. You are only eligible for Chapter 13 if your debts do not exceed certain dollar amounts set forth in the Bankruptcy Code.
2. Under Chapter 13, you must file with the court a plan to repay your creditors all or part of the money that you owe them, using your future earnings. The period allowed by the court to repay your debts may be three years or five years, depending upon your income and other factors. The court must approve your plan before it can take effect.
3. After completing the payments under your plan, your debts are generally discharged except for domestic support obligations; most student loans; certain taxes; most criminal fines and restitution obligations; certain debts which are not properly listed in your bankruptcy papers; certain debts for acts that caused death or personal injury; and certain long term secured obligations.
C. Bankruptcy Crimes and Availability of Bankruptcy Papers to Law Enforcement Officials
A person who knowingly and fraudulently conceals assets, or makes a false oath or statement under penalty of perjury, either orally or in writing, in connection with a bankruptcy case is subject to a fine, imprisonment, or both. All information supplied by a debtor in connection with a bankruptcy case is subject to examination by the Attorney General acting through the Office of the United States Trustee, the Office of the United States Attorney, and other components and employees of the Department of Justice.
WARNING : Section 521(a)(1) of the Bankruptcy Code requires that you promptly file detailed information regarding your creditors, assets, liabilities, income, expenses and general financial condition. Your bankruptcy case may be dismissed if this information is not filed with the court within the time deadlines set by the Bankruptcy Code, the Bankruptcy Rules, and the local rules of the court.View Details»