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FAQs: For Creditor

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  • 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.

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  • 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.

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  • 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.

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  • 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.

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  • 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.

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  • 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.

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  • 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.

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  • 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 1220 SW 3rd Ave #315 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.

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  • Where do I get a copy of the Local Rules for the Bankruptcy Court (also known as LBRs or Local Bankruptcy Rules)?

    Copies of the Local Bankruptcy Rules for the District of Oregon can be downloaded from this website in PDF Format, or obtained from the Clerk’s office.

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  • What is an adversary proceeding and how do I file a complaint?

    What is an adversary proceeding?

    An adversary proceeding is the bankruptcy court’s version of a civil action (a lawsuit). An adversary proceeding is opened by filing a complaint asking the court to rule on an issue related to a bankruptcy case. The adversary proceeding is given a new case number that is separate from the number of the associated bankruptcy case. Further filings in the adversary proceeding are filed under the adversary proceeding number.

    Adversary proceedings are governed by Part VII of the Federal Rules of Bankruptcy Procedure (FRBP). FRBP 7001 lists types of proceedings that must be filed as adversary proceeding complaints, rather than as motions or notices in the bankruptcy case.  Click here to see the rule.

    The following is a list of some, but not all, actions that must be brought by adversary proceeding:

    • Proceeding to object to or revoke the debtor’s discharge under 11 U.S.C. §§ 727 or 1328, except for a motion objecting to discharge under §§ 727(a)(8), 727(a)(9), or 1328(f). See FRBP 4004(a) for filing an objection to discharge.

    • Proceeding to determine the dischargeability of a particular debt under § 523.

    • Proceeding to revoke  confirmation of a plan in chapters 11, 12, or 13 under §§ 1144, 1230, or 1330.

    • Proceeding to subordinate a claim or interest (other than as part of a plan) under § 510.

    How do I file a complaint?

    An adversary proceeding complaint is filed with the clerk’s office. Unless the complaint is electronically filed, it must be filed with a completed Adversary Proceeding Coversheet on Local Bankruptcy Form 1040 (which is identical to Official Form 1040).

    See LBF ADV for more information.

    Seeking legal advice is recommended

    It is highly recommended that legal advice be obtained from an attorney before filing an adversary proceeding complaint.

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  • How do I serve an adversary proceeding summons and complaint, motion, or chapter 12 or 13 plan?

    I. Disclaimer

    This FAQ is general information, not legal advice. It does not address all elements of the rules or all fact situations. It has not been updated since May 14, 2021, and there is no guaranty that its content is current. The people in the clerk’s office can provide you with general information, but neither they nor the bankruptcy judge can give you legal advice.

    II. Who should read this FAQ?

    Read this FAQ if you have filed or are considering filing a complaint starting an adversary proceeding, a motion, or a plan in a case under chapter 12 or chapter 13. This FAQ tells you how to serve the documents that start those types of litigation in the Oregon bankruptcy court.

    III. What is service?

    “Service” is the way that you must send other people certain litigation documents in a bankruptcy case. Documents that start litigation must be served in the way that is required by Federal Rule of Bankruptcy Procedure (FRBP or Rule) 7004.

    If you fail to serve documents that start litigation in the way required by Rule 7004, the bankruptcy judge could be unable to rule for you. And if a service error is discovered after the judge has ruled for you, the judge could be required to set aside the ruling.

    IV. What bankruptcy documents must be served under Rule 7004?

    There are two categories of bankruptcy litigation in which the documents that start the litigation must be served under Rule 7004. The first category is called an adversary proceeding. An adversary proceeding is started by the filing of a complaint, and it has its own number separate from the number of the main bankruptcy case.

    The second category of litigation in which documents starting the litigation must be served under Rule 7004 occurs in the main bankruptcy case. That litigation starts and ends as part of the main bankruptcy case, and it addresses a specific dispute within the main bankruptcy case for the court to resolve. The dispute is called a contested matter, and there can be several contested matters within one main bankruptcy case. The document that starts a contested matter is usually a motion, but it can also be another type of document, such as a chapter 12 or 13 plan.

    Rule 7004 service is required for documents starting all contested matters. In addition, certain documents are specifically required to be served under Rule 7004: an involuntary petition; an objection to the claim of the United States or of any of its officers or agencies or of an insured depository institution; a chapter 12 or 13 plan that seeks to determine the amount of a secured claim; a debtor’s motion, either by itself or in a plan, to avoid a lien on or other transfer of exempt property; a debtor’s motion in a chapter 12 or 13 case for an order declaring a lien satisfied and released under a confirmed plan; a motion for sanctions; a motion for appointment of a next friend or guardian ad litem for the debtor; and a chapter 12 or 13 plan in which the debtor provides for assumption, rejection, or assignment of an executory contract or unexpired lease.

    This FAQ uses the term “motion” to mean motions and other documents that start contested matters or are required to be served under Rule 7004.

    V. What documents must be served?

    A. Summons

    After you start an adversary proceeding by filing a complaint, the clerk will issue and send you a summons. The summons tells the defendant when and where to file an answer or motion responding to the complaint, and it includes the time and place of the first hearing. The summons and complaint must be served together under Rule 7004.

    With one exception, no summon is issued in a contested matter. The exception is for the summons issued when an involuntary petition is filed.

    B. Notice of motion

    With certain exceptions, a motion that starts a contested matter must include a notice of motion before the substantive part of the motion (where you say what you want and why you are entitled to it). The notice of motion serves a function similar to the summons in an adversary proceeding, telling the target of the motion when and where to file an objection to the motion.

    The notice of motion must follow this template:

    Notice. If you oppose the proposed course of action or relief sought in this motion, you must file a written objection with the bankruptcy court no later than [insert number of days in objection period, excluding any additional time provided by FRBP 9006] days after the date listed in the certificate of service below. If you do not file an objection, the court may grant the motion without further notice. Your objection must set forth the specific grounds for objection and your relation to the case. The objection must be received by the clerk of court at [insert the address for the office in Portland or Eugene, whichever is administering the case] by the deadline specified above or it may not be considered. You must also serve the objection on [insert name, address, and phone number of movant] within that same time. If the court sets a hearing, you will receive a separate notice listing the hearing date, time, and other relevant information.

    If no specific objection deadline applies to the motion, the deadline is 14 days, so use “14” in place of the language in the first bracket. “Movant” means you if you are filing the motion, so use your name, address, and phone number in the last bracket.

    The notice isn’t required in several circumstances, including if the motion is filed using a local bankruptcy form (LBF) or official bankruptcy form; the motion seeks to convert or dismiss the case (unless the motion is by a chapter 13 trustee); the motion is unopposed, joint, or stipulated; the motion seeks certain relief that the court can grant without notice and a hearing; or the motion requests expedited consideration.

    VI. How must documents be served under Rule 7004?

    Although Rule 7004 describes ways in which service is permitted, service using a permitted method is mandatory. In other words, it’s possible that more than one method of service could be available to you, depending on the circumstances, but you must follow at least one of them for service to comply with Rule 7004.

    A. Service by mail

    You may serve documents under Rule 7004 by mailing them, postage prepaid, to an address within the United States—but only in the specific ways described below. The ways that service is permitted depend on the type of defendant who will be served. The following explanation of the service rules applies to litigation started in the Oregon bankruptcy court and uses the term “defendant” to refer not only to the defendant in an adversary proceeding, but also to the target of a motion.

    With certain exceptions listed below, mail service must be by first-class mail.

    1. Individual

    If the defendant is an individual, other than an infant or incompetent person, the mailing may be to the defendant’s dwelling or usual place of abode or to the place where the defendant regularly conducts a business or profession. A post office box isn’t a dwelling or usual place of abode or a place where a business or profession can be conducted.

    2. Infant or incompetent person

    If the defendant is an infant or incompetent person, the mailing may be to the person upon whom process is prescribed to be served by the law of the state in which service is made when a lawsuit is brought against such a defendant in the courts of general jurisdiction of that state. In both cases, you must mail to the defendant and each other person who must be served by a mailing addressed to the person’s dwelling house or usual place of abode or where the person regularly conducts a business or profession.

    A minor defendant under age 14 may be served in Oregon by serving the defendant and the defendant’s father, mother, conservator of the defendant’s estate, or guardian, or if there is none, then to any person having the care or control of the defendant, or with whom the defendant resides, or in whose service the defendant is employed, or upon a guardian ad litem appointed under Oregon Rule of Civil Procedure (ORCP) 27 B.

    A defendant who is incapacitated or financially incapable, as those terms are defined in Oregon Revised Statute (ORS) 125.005, may be served in Oregon by serving the defendant and the conservator of the defendant’s estate or guardian or, if there is none, upon a guardian ad litem appointed under ORCP 27 B.

    3. Corporation, partnership, or unincorporated association

    If the defendant is a domestic or foreign corporation, partnership, or other unincorporated association, the mailing may be to the attention of an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process (such as a registered agent) on behalf of the defendant and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing to the defendant. The term “corporation” includes a limited liability company. For entities formed under Oregon law or registered to do business in Oregon and whose registration hasn’t lapsed, information about the entity, including the name and address of its registered agent, may be available on the website of the Oregon Secretary of State.

    4. United States

    If the defendant is the United States, the mailing may be to both (separately) the Civil Process Clerk at the office of the U.S. Attorney for the District of Oregon and the Attorney General of the United States at Washington, D.C. If the adversary proceeding or contested matter attacks the validity of an order of an officer of an agency of the U.S. but the officer or agency hasn’t been made a party to the adversary proceeding or contested matter, the mailing must also be to the officer or agency.

    5. Officer or agency of U.S.

    If the defendant is an officer or agency of the U.S., the mailing may be to both (separately) the U.S. Attorney for the District of Oregon and the Attorney General at Washington, D.C., and also to the officer or agency. If the agency is a corporation, such as the Federal Deposit Insurance Corporation, the mailing must also comply with part VI.A.3 above governing service on a corporation.

    6. State or municipal corporation or other governmental organization

    If the defendant is a state or municipal corporation or other governmental organization, the mailing may be to the person or office upon whom process is prescribed to be served by the law of the state in which service is made when an action is brought against the defendant in the courts of general jurisdiction of that state, or, in the absence of the designation of any such person or office by state law, then to the chief executive officer of the defendant.

    If the defendant is the State of Oregon, the mailing may be to the Attorney General, Oregon Department of Justice.

    If the defendant is an Oregon county, incorporated city, or other public corporation, commission, board, or agency, the mailing may be to an officer, director, managing agent, or attorney of the defendant.

    7. Debtor

    If the defendant is the debtor in the bankruptcy case in which the adversary proceeding or contested matter is filed and the bankruptcy case hasn’t been dismissed or closed, the mailing may be to the debtor at the address shown in the petition or any other address that the debtor designates in a filed writing. The current address for the debtor is shown at the top of the online PACER docket for the main bankruptcy case. If the debtor’s designated address is a post office box, mail service may be addressed there even though that address wouldn’t be proper for mail service on an individual defendant who isn’t the debtor.

    If the debtor is represented by an attorney, you must also mail to the attorney at the attorney’s mailing address. The name and address of any debtor’s attorney appears near the top of the online PACER docket for the main bankruptcy case.

    8. U.S. trustee

    If the defendant is the United States trustee, the mailing may be to an office of the U.S. trustee or another place designated by the U.S. trustee in Oregon.

    9. Other mailing addresses for individual, corporation, partnership, or unincorporated association

    In addition to the mailing addresses for a defendant who is an individual (described in part VI.A.1 above) or a corporation, partnership, or unincorporated association (described in part VI.A.3 above), the mailing may be to the person or entity on whom service is prescribed to be served by any federal statute or statute of the state in which service is made when an action is brought against the defendant in the court of general jurisdiction of that state.

    10. Agent of defendant

    For any type of defendant, the mailing may be to an agent of the defendant authorized by appointment or by law to receive service of process—such as the registered agent of a corporation, limited partnership, or limited liability company—at the agent’s dwelling house or usual place of abode or where the agent regularly carries on a business or profession and, if the authorization so required, to the defendant as otherwise required by Rule 7004(b).

    11. Insured depository institution

    “Insured depository institution” includes most banks (including all with Federal Deposit Insurance Corporation deposit insurance), but it doesn’t include credit unions. If the defendant is an insured depository institution, you may mail by certified mail addressed to an officer of the institution unless one of the following three exceptions applies.

    • If the institution has appeared in the bankruptcy case by its attorney, mail service on the institution must be by mailing to the attorney by first-class mail.
    • If the court so orders after a prescribed notice to the institution, service on the institution must be made by first-class mail.
    • If the institution has waived in writing its entitlement to service by certified mail and has designated an officer to receive service, mail service on the institution must be by first-class mail to the designated officer.

    If you are uncertain whether mailing must be first-class or certified, you may mail both ways.

    B. Other service methods

    Because service by mail within the U.S. is the most common type of service in bankruptcy cases, this FAQ does not address all the other ways that you may make service, including within the U.S. other than by mail and outside the U.S. Those other ways are described in Rule 7004(c) and Federal Rule of Civil Procedure (FRCP) 4(e)-(j).

    If you decide to have documents personally served (delivered), rather than mailed, to the persons required to be served, neither you nor any other party can be the server. The server must be a nonparty at least 18 years old. In an adversary proceeding, the parties are the plaintiff (you) and the defendants. In a contested matter, the parties are the movant and the targets of the motion.

    If you need to serve someone outside the U.S., see FRCP 4(f).

    VII. When must I complete service?

    Two deadlines apply to service in an adversary proceeding. One runs from the date the summons is issued, and the other runs from the date the complaint was filed. You have seven days after the summons was issued to complete service in the U.S. If you don’t meet that deadline, ask the clerk to issue a replacement summons (sometimes called an alias summons). You must serve the replacement summons within seven days after it is issued.

    The second deadline runs from the date the complaint was filed. If you don’t complete service in the U.S. within 90 days after the complaint was filed, the court can dismiss the adversary proceeding unless you show good cause for the failure to meet the deadline.

    You must serve a motion or other document that starts a contested matter when you file it.

    VIII. How must I prove service?

    A. Who must sign the certificate of service?

    A certificate of service must be completed and signed by the person who did the service. If you served by mail, you are the server and you must sign the certificate. If you had someone else do the service, whether by mail or otherwise, that person must sign the certificate. The balance of this FAQ assumes that you were the server.

    B. Adversary proceeding

    In an adversary proceeding, the summons includes a blank certificate of service. After you have served the summons and complaint, you must complete the certificate and file the summons with the completed certificate.  Alternately, you may use LBF 305 for the certificate of service, to be filed with the completed summons.

    C. Contested matter

    In a motion that is not prepared on an LBF, a certificate of service must be incorporated in, attached to, or accompany the document. The certificate must include a clearly identified list of the names, addresses, and methods for service on all parties served using paper, including by mail.

    1. Chapter 12 plan

    Several provisions of the chapter 12 and 13 plan forms permit the debtor to propose treatment of a creditor or other party that, if sought outside a plan, would require service under Rule 7004. For that reason, creditors treated in those plan paragraphs must be served under Rule 7004.

    In a chapter 12 case, creditors or parties treated in the following plan paragraphs must be served under Rule 7004: paragraphs 2(b)(1) or 2(b)(2), in either case if the creditor or party is listed under “Collateral Value if Not Paying in Full,” and paragraph 3. The debtor must file a certificate of service listing the names and addresses of all persons and entities served by mail or any other method other than via notice of electronic filing, including all served by certified mail or by first-class mail, postage prepaid, and the date and manner of service for each person or entity.

    2. Chapter 13 plan

    In a chapter 13 case, a certificate of service appears on page 7 of the plan form. Creditors or parties treated in the following plan paragraphs must be served under Rule 7004: paragraphs 4(b)(1) (if the creditor is listed under “Collateral Value if Not Paying in Full),” 4(b)(2) (if the creditor is listed under “Amount of Claim as Modified),” 5, and 6. The names and addresses to which the debtor served the plan by first-class mail on creditors or parties who aren’t insured depository institutions must be added to the part "a)" blank in the certificate. The names and addresses to which the debtor served the plan by certified mail on creditors or other parties who are insured depository institutions (if certified mail was proper; see part VI.A.11 above) must be added to the part "b)" blank.

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  • 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.

    Hardship Discharge

    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.

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  • 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.

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  • 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. A reaffirmation agreement must be filed on Official Form 2400A (preferred by the court) or Official Form 2400A/B Alt and, in either case, the form must be attached to the cover sheet, Official Form 427.

    A reaffirmation agreement is strictly voluntary. It is 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. Because a reaffirmation agreement makes the debtor's discharge ineffective as to the reaffirmed debt, a debtor should seek the advice of an attorney before agreeing to reaffirm a debt.

    All blanks in a reaffirmation agreement must be completed accurately as of the date the debtor signs the agreement. Frequently, reaffirmation agreements do not correctly report the debtor’s income and expenses. If a blank in the agreement asks for the debtor’s expenses excluding payment on the debt to be reaffirmed (in part II.C.1.b. of OF 2400A or part D.1. in OF 2400A/B Alt), do not include payments on the debt to be reaffirmed as part of the expenses. If a creditor sends the debtor a proposed reaffirmation agreement, the debtor is responsible for confirming that all information in blanks completed by the creditor is correct. The court can either postpone a reaffirmation hearing or disapprove a reaffirmation agreement if it does include any incorrect information.

    A reaffirmation agreement must be filed within 60 days after the first date set for the meeting of creditors unless the court enlarges that time. The court will not take any action to approve a reaffirmation agreement that is filed after a discharge order has been entered or in a closed case unless the case is reopened.

    If the debtor was not represented by an attorney during the course of negotiating the agreement and the debt is not a consumer debt secured by real property, the court will hold a hearing to consider approval of the agreement. The debtor must attend the hearing. To become enforceable, the agreement must be approved by the judge. To approve the agreement, the judge must decide that approval would be in the debtor’s best interest and would not impose an undue hardship on the debtor or the debtor’s dependents. An agreement is presumed to be an undue hardship if it shows that the debtor has insufficient income to make payments on the reaffirmed debt and the debtor’s other expenses. If undue hardship is presumed, the court can approve the agreement only if the debtor rebuts the presumption.

    The court will not hold a hearing on and will neither approve nor disapprove any reaffirmation agreement in which the debtor was represented by an attorney during the course of negotiating the agreement or the debt is a consumer debt secured by real property. If the debtor was represented by an attorney during the course of negotiating the agreement and the attorney signed the agreement, making the certification required by 11 U.S.C. § 524(c)(3), or if the debt is a consumer debt secured by real property, bankruptcy law is not a bar to the enforceability of the agreement. If the debtor was represented and the attorney did not sign the agreement, the agreement is unenforceable.

    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 the debtor’s mind and rescind the agreement. To rescind the agreement, the debtor must send notice to the creditor that the reaffirmation agreement is being rescinded and should file it with the court.

    If the debtor reaffirms a debt, does not timely rescind the agreement, and fails to make the payments or otherwise perform the obligation as agreed, the creditor can 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.

    For more information, click here to view a video on the court's website in which former Chief Judge Brown discusses reaffirmation agreements.

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  • 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, the party must file with the 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 LBF720.90.

    The filing fee for a Motion for Relief from the Automatic Stay is found on the Court Fees List.

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  • 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 must be filed at least seven (7) business days prior to the confirmation hearing with copies to the trustee, debtor and debtor’s attorney, if any, and the creditor must appear 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).

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  • 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.

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  • 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.

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  • 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.

    Examples:

    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.

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