FREQUENTLY ASKED QUESTIONS
Though common in the United States,
those who file bankruptcy (debtors) and many of their creditors,
know very little about the bankruptcy process. The information
provided below is intended to provide basic answers to some of the
most commonly asked questions.
Disclaimer:
The information
provided below is not intended to be legal advice and it should not
be cited or relied upon as legal authority. Bankruptcy law
is continually changing therefore some of the provisions contained
here may be out of date. It is always best to consult a Central
Florida Bankruptcy attorney about your legal rights and
responsibilities regarding your particular case.
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Do I need an attorney to represent me in my bankruptcy case?
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What will happen to my case if I filed bankruptcy before and failed to pay the entire filing fee?
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How is a debt classified as secured, unsecured, priority, or administrative?
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What is the difference between a discharge being denied and a debt being declared non-dischargeable?
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What is the role of a Trustee assigned in a chapter 7 or 13 case?
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How long does a bankruptcy filing remain on my credit report?
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What can I do if I disagree with an order entered in a case?
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What can I do if a creditor keeps trying to collect money after I have filed bankruptcy?
1.
What happens
when a bankruptcy petition is filed?
The commencement of a bankruptcy case
creates an “estate.” The estate technically becomes the temporary
legal owner of all of the Debtor’s property. The estate consists of
all legal or equitable interests of the Debtor in property as of the
date the case is filed, including property owned or held by another
person if the Debtor has an interest in the property. The “automatic
stay” is immediately invoked at the instant of the filing of the
bankruptcy case, and it prohibits creditors from taking collection
action against the Debtor or the Debtor’s property without
Bankruptcy Court approval. The Court issues a notice of commencement
advising all interested parties of the filing of the bankruptcy
case. This notice provides the case number, trustee, date of the
meeting of creditors, deadline to file a proof of claim (if
applicable), and deadline to file an objection to the discharge (if
applicable).
2. What does a case number indicate?
A case number indicates the year the case was filed, the number
assigned to the case, location of the court, the assigned judge, and
the chapter under which it was filed: Example: 8:06-bk-124-PMG, 8
indicates the office in which filed (6 - Orlando, 8 - Tampa, 9 - Ft.
Myers, and 3 - Jacksonville); 06 is the year filed, bk indicates a
bankruptcy case (ap indicates an adversary proceeding); 00001 is the
case number assigned, PMG is for Chief Judge Glenn.
3. Do I need an attorney to represent me in my bankruptcy case?
Each Debtor filing an individual bankruptcy has a right to represent
him or herself (Pro Se Debtor); however, the use of an attorney is
recommended. Ignorance of the law may cost an individual far more
than an attorney’s fee. By law, a Corporation is required to have an
attorney. Note: Individuals who choose to represent themselves will
not be able to obtain legal advice from court personnel or from the
trustee appointed to their case.
4. What is a Pro Se Debtor?
A Pro Se Debtor is one who files bankruptcy without an attorney. A
Pro Se Debtor is responsible for all proceedings of his/her case.
Failure to comply with the Bankruptcy Code and Rules or with court
orders may cause dismissal of the Debtor’s case.
It is recommended that all Debtors seek legal advice before filing
bankruptcy.
|
|
|
|
Chapter 7 |
$ 299.00 |
|
Chapter 7 - To Reopen |
$ 260.00 |
|
Chapter 9 |
$1039.00 |
|
Chapter 9 - To Reopen |
$1000.00 |
|
Chapter 11 |
$1039.00 |
|
Chapter 11 - To Reopen |
$1000.00 |
|
Chapter 12 |
$ 239.00 |
|
Chapter 12 - To Reopen |
$ 200.00 |
|
Chapter 13 |
$ 274.00 |
|
Chapter 13 - To Reopen |
$ 235.00 |
|
Chapter 15 (known as foreign proceeding (§304) prior to
October 17, 2005) |
$1039.00 |
|
Chapter 15 - To Reopen |
$1000.00 |
The prescribed filing fee, if paid by the Debtor, must be in the
form of exact cash, cashier’s check, or money order made payable to
Clerk, United States Bankruptcy Court.
6. Can the Court waive the bankruptcy petition filing fee?
28 U.S.C. 1930(f)(1) provides that the court may waive filing fee in
a case under Chapter 7 for an individual if the Court determines
that such individual has income less than 150 percent of the income
official poverty line applicable to a family of the size involved
and is unable to pay that fee in installments. The Bankruptcy Rules
do provide for individuals to pay the filing fee in installments. To
pay the fee in installments, you must submit an application, and the
application must be approved by the Court.
7. Why do I need exact change?
The policies of the Administrative Office of the U.S. Courts do not
allow the Clerk’s Office to provide change.
8. What will happen to my case if I filed bankruptcy in the past
and failed to pay the entire filing fee?
A Bankruptcy Judge may take any of the following steps when the
entire filing fee has not been paid in a prior case and the Debtor
tries to file another case within 180 days of the entry of the
dismissal order: (1) dismiss the case being filed, (2) refuse to
allow the Debtor to pay the filing fee in installments for the
current case, (3) make the Debtor pay the filing fee from the
previous case, or (4) take any other action that is appropriate.
9. What chapter is right for me?
Your decision whether to file bankruptcy and under which chapter to
file depends on your particular circumstances. In general, Chapter 7
is appropriate when the Debtor has insufficient income to pay a
portion of his/her debts, and the Debtor is not seeking to keep
non-exempt property. Otherwise, if the Debtor has an income or
property and can afford to repay at least some of his/her debts,
Chapter 11, 12 or 13 may be appropriate, depending on whether the
Debtor is an individual, partnership, corporation, or family farmer.
The decision whether to file a
bankruptcy case and under which chapter is an extremely important
decision and has tremendous financial impact. Consequently,
this decision may require expert advice from a bankruptcy attorney.
10. What must I do before I file my case?
Pursuant to section 109(h)(1) you must complete and obtain a certificate from a approved non-profit budge and credit counseling agency during the 180-day period proceeding the date of filing.
11. What is the difference between a chapter 7, 13 and 11?
Chapter 7 – In a Chapter 7, Debtors are permitted to retain certain “exempt” property, while the remaining assets are liquidated by the trustee. The trustee will distribute the funds from the liquidation to holders of claims (creditors) in accordance with the provisions of the Bankruptcy Code. Accordingly, potential Debtors should realize that the filing of a petition under chapter 7 might result in the loss of non-exempt property.
Chapter 13 – Chapter 13 is designed for individuals with regular income to repay a portion or all of their debt over an extended period of time. Chapter 13 may be appropriate for Debtors who seek to retain certain assets through a repayment plan.
Chapter 11 – Chapter 11 allows corporations, partnerships, and certain individuals who do not qualify under Chapter 13, to reorganize without having to liquidate all assets. As in a Chapter 13, the Debtor (called the “debtor-in-possession” because a trustee is not normally assigned) is required to present a repayment plan. If the plan is accepted by the creditors and subsequently approved (“confirmed”) by the Court, this allows the Debtor to reorganize his/her/or its personal, financial, or business affairs.
12. How is a debt classified as secured, unsecured, priority, or administrative?
A secured debt is a debt that is collateralized by property. A creditor whose debt is “secured” has a right to foreclose or take property to satisfy a “secured debt.” For example, a mortgage loan is likely “secured” by a Debtor’s home. This means that the lender has the right to foreclose upon and take the home if the Debtor fails to make the loan payments.
An unsecured debt arises when you promise to repay someone a sum of money at a particular time, but you have not pledged any property as collateral for the debt.
A priority debt is a debt entitled to priority in payment, ahead of other debts. Please refer to 11 U.S.C. §507 of the Bankruptcy Code for a listing of such priority claims.
An administrative debt is a category of priority debt. Generally, it is created when someone provides goods or services to your bankruptcy estate after you file your petition. An example of an administrative debt is the fee charged by an attorney or other authorized professional for services rendered after the bankruptcy case has been filed.
13. When do I receive a discharge of my debts?
The Notice of the Section §341 Meeting of Creditors reflects a date by which all complaints objecting to discharge or dischargability of debts must be filed. If the debtor has complied with all of the filing requirements, paid the filing fee in full and pursuant to section 727(a) (10) completed an instructional course concerning personal financial management, and has filed the proper certification reflecting completion, your discharge will be entered in due course after the expiration of the date stated earlier.
14. What debts are dischargeable?
Generally, all debts listed on the petition are dischargeable. However, certain types of debt listed in 11 U.S.C. §523 are not dischargeable. The non-dischargeable debts listed in §523 include, but are not limited to:
a. Certain taxes and fines;
b. Debts arising from certain fraudulent conduct;
c. Debts not listed in your bankruptcy petition;
d. Alimony, child maintenance or support, and certain other related debts arising out of a divorce decree or separation agreement;
e. Debts caused by the Debtor’s willful and malicious injury to another;
f. Government guaranteed student loans;
g. Debts caused by a death or personal injury related to your operation of a motor vehicle while intoxicated; and
h. Post-bankruptcy condominium or cooperative owner’s association fees.
This list includes only examples of non-dischargeable debts; see 11 U.S.C. § 523 for a complete list. Under § 523, a creditor or party in interest may also file a complaint to have their debt declared nondischargeable.
In a chapter 13 case, the discharge is broader under 11 U.S.C. § 1328(a).
15. How do I change or correct information in the petition, schedules, and statements I already filed with the Clerk’s Office?
The information contained in your petition, schedules, and statement of 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 of an amendment with the Clerk’s Office. New schedules or statements must be filed showing the corrected information along with a certificate of service. A fee of $26.00 must be paid when amending schedules D, E, or F (or any list of creditors or mailing matrix). All amendments must be served upon the United States Trustee and case trustee, and certain amendments must be served upon the creditors affected by the amendment. The amendment must also contain an original signature.
16. What is a bankruptcy discharge?
It releases the Debtor from personal liability for discharged debts. Thus, it prevents the creditors owed those debts from taking any action against the Debtor to collect the debts. Most, but not all, types of debts are discharged if they existed on the date the bankruptcy case was filed and were listed on the schedules. Some of the debts that are not discharged are discussed in question 12. Bankruptcy law regarding the scope of a discharge is complex, and Debtors should consult competent legal counsel prior to filing.
17. How do I obtain a copy of my discharge?
You can obtain a copy from the Clerk’s Office by either coming in person or sending in a written request. There is a charge of $.50 per page, plus an additional $7.00 charge if you desire a certified copy. Payment must be in the exact amount payable either by money order or cashier’s check. You must include a self-addressed, stamped envelope. You may also contact the Court’s contracted photocopying service, Judicial Research and Retrieval Service in Tampa at (813)-228-7200, Orlando at (407) 999-7717, and Jacksonville at (813) 228-7200. You can also obtain additional information concerning their services by visiting Judicial Research & Copy Service.
18. Can a discharge be denied?
Under certain circumstances, 11 U.S.C. § 727 provides the Debtor’s discharge may be denied in a chapter 7 case. Grounds for denial exist when the Debtor: (1) failed to keep or produce adequate books or financial records, (2) failed to satisfactorily explain any loss of assets, (3) committed a bankruptcy crime such as perjury, (4) failed to obey a lawful order of the bankruptcy court, or (5) fraudulently transferred, concealed, or destroyed property that would have become property of the estate. Refer to § 727 for a complete list.
19. What is the difference between a discharge being denied and a debt being declared nondischargeable?
The court can deny the Debtor’s discharge of all debts, or determine that a particular debt or debts are nondischargeable. If the court denies the discharge of all debts, then the Debtor will still be legally responsible for all the debts as if no bankruptcy petition had ever been filed. If only certain debts are ruled nondischargeable, the Debtor will still receive a discharge order. However, the Debtor will remain legally responsible for those nondischargeable debts. For a discharge to be denied, either as to a particular debt or as to all debts, someone must file an adversary proceeding (lawsuit) with the court. That party must then prove one of the grounds for denial of the discharge or for a debt to be declared nondischargeable. See Question No. 19 (for discharge) and Question No. 15 (for dischargeability of a particular debt). If your discharge is not withheld or none of your debts is declared to be nondischargeable, then all the debts listed in your petition will be discharged upon the entry of the order granting your discharge (meaning your personal liability for the debts will be eliminated).
20. How do I obtain information about a case?
(Florida Middle District) - You can visit the courthouse and view a file between the hours of 8:30am and 4:00pm, Monday through Friday. You can also access information for the Middle District of Florida, toll-free at 1-866-879-1286. Information about a case may be obtained by providing the Debtor’s social security or tax identification number or the Debtor’s name. The following information is available: whether a case has been filed, when it was filed and under which chapter, the judge assigned to the case, Debtor’s attorney and phone number, trustee and phone number, and date and time of the meeting of creditors required under Section 341 of the Bankruptcy Code. For further information on the VCIS, click here Voice Case Information System.
NOTE: Case information may not be available for cases filed prior to a certain date. Information for such older cases can only be obtained through the Archive’s Center in Atlanta, Georgia. Copies can be requested directly from the Archive Center, but certain information will be needed from the Court. Please contact the Clerk’s Office where the case was filed for availability of the file or for instructions on ordering archived information, Tampa at (813) 301-5065, Orlando at (407) 648-6365, and Jacksonville at (904) 301-6490.
21. May I review my case file?
Yes, files maintained by the Clerk’s Office are public records. You may review your case, but you may not remove original documents from the Court files nor take the files from the Clerk’s Office. Copies of documents can be made by the Court at $.50 per page up to five pages. Anything over five pages must be copied by the Court’s contract copy service. Contact Judicial Research and Retrieval Service, Inc., in Tampa at 813-228-7200; Orlando at (407) 999-7717; and Jacksonville at (813) 228-7200. For further information concerning the photocopying service, click here: Judicial Research & Copy Service.
22. Can I view records through the Internet?
Yes. Access to electronic court records via the Internet or by direct dial-up modem is available by registering with PACER. To obtain a password contact the PACER Service Center at 1-800-676-6856 or click here Pacer Service Center.
23. How do I find out who is the trustee assigned to a case?
You may obtain the trustee’s name by visiting the clerk’s offices, or through the Voice Case Information System (VCIS). The VCIS telephone number is 1-866-879-1286. For Chapter 11 cases, you can also call the United States Trustee’s Offices: Tampa at (813) 228-2000; Orlando and Jacksonville at (407) 648-6301. (If you received a “Commencement of Case/341 Meeting Notice,” the assigned trustee, along with other contact information, is printed on that notice.)
24. What is the role of a Trustee assigned in a chapter 7 or 13 case?
Under Chapter 7, an impartial trustee is appointed to administer the case by collecting and liquidating the Debtor’s non-exempt assets in a manner that maximizes the return to the Debtor’s unsecured creditors.
Under Chapter 13, an impartial trustee is also appointed to administer the case. The primary roles of the chapter 13 trustee are to determine the feasibility of a Debtor’s repayment plan for the court and to serve as a disbursing agent, collecting payments from Debtors and making distributions to creditors.
25. What is the function of the U. S. Trustee?
The office of the U. S. Trustee is an agency of the Department of Justice, with responsibilities that include monitoring the administration of bankruptcy cases and detecting bankruptcy fraud. It is also responsible for appointing and supervising interim trustees to administer Chapter 7 cases, overseeing the Debtor-in-Possession, and appointing a standing Trustee in Chapter 13 cases.
26. What is a 341 meeting?
This meeting is referred to as the “meeting of creditors.” All creditors are notified so that they may attend, but their attendance is not required. Debtors have a duty to appear and testify under oath and answer questions by creditors. This meeting is presided over by the trustee assigned to the case and is held approximately 40 days after the petition is filed. Debtors are required to provide photo identification and proof of social security number to the assigned trustee. A Debtor’s failure to appear may result in dismissal of the case. If a continuance or change in the hearing date is sought, the trustee assigned to the case must be contacted.
27. How long does a bankruptcy filing remain on my credit report?
A maximum of ten years under provisions of the Fair Credit Reporting Act.
28. What can I do if I disagree with an order entered in a case?
You can either file a motion for reconsideration of the order or file a notice of appeal. The person fiing the notice of appeal becomes an “Appellant” and the other party, the “Appellee.” When an appeal is filed, the matter is referred to the United States District Court. The filing fee is $250.00 to Docket the Appeal and $5.00 for the Notice of Appeal.
29. What is an adversary proceeding? What do I need to file when filing an adversary proceeding with the Court?
An adversary proceeding is a lawsuit arising in or related to a bankruptcy case. It is commenced with the filing of an adversary proceeding cover sheet, complaint, summons, and the filing fee of $250.00, if applicable.
30. What can I do if a creditor keeps trying to collect money after I have filed bankruptcy?
Your bankruptcy attorney will immediately notify the creditor in writing that you have filed bankruptcy, and provide them with the case name, case number, and filing date, or a copy of the petition that shows it was filed. If a creditor continues to attempt 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. However, a formal motion must be filed, in accordance with the Bankruptcy Code and applicable Rules. If the creditor is willfully violating the automatic stay, the Court can hold the creditor in contempt of court and fine the creditor. Any such legal action brought against the creditor will be complex and will normally dictate representation by a qualified bankruptcy attorney.
31. What should I do if I cannot make my Chapter 13 payment?
If the Debtor cannot make a chapter 13 payment on time pursuant to the terms of the confirmed plan, the Debtor should contact the chapter 13 Trustee by phone and by letter advising the Trustee of the problem and whether it is temporary or permanent. If it is temporary, the Debtor should advise the Trustee of the time and manner in which the Debtor will make up the payments. So long as the Trustee agrees, the payments can be made up over time. If the problem is permanent and the Debtor is no longer able to make payments under the plan, the Trustee will request that the case be dismissed or converted to another chapter, or the Debtor may seek to modify his or her plan. The determination of whether to modify the plan or dismiss or convert a case requires legal analysis. The Debtor should seek counsel from a qualified bankruptcy attorney before attempting to make a decision how to proceed in their case.
32. How can I access court dockets by computer?
The PACER system allows you to access docket sheets for bankruptcy case proceedings if you have a computer and modem. The fee for accessing the PACER service via the Internet (Web PACER) is 7 cents per page. To register for PACER, contact the PACER Service Center at 800-676-6856. For further information on PACER, click here PACER.
33. How do I get transcripts of court hearings?
Official transcripts of court hearings are produced by certified court reporters. Information on how to order transcripts for Tampa, Orlando, and Jacksonville can be obtained by clicking here Court Reporters.
34. What is a reaffirmation agreement?
A reaffirmation agreement is an agreement between the Debtor and a creditor that the Debtor will pay all or a portion of the money owed, even though the Debtor has filed bankruptcy. In return, the creditor promises that, as long as payments are made, the creditor will not repossess or take back its collateral. This means that the Debtor will remain personally liable on that debt.
Refer to 11 U.S.C. § 524 Bankruptcy Code for detailed information. Information is also available by clicking here Reaffirmation Guide.
35. What is a Motion?
A motion is a written formal document in which the party, the movant, who is requesting an action, sets forth his grounds for the action requested. The party against whom the action is requested is the respondent.
36. How do I obtain copies or certified copies of documents?
Copies may be obtained directly from the Court at a fee of $.50 per page (maximum of 5 pages at one time) and certified copies at $.50 per page (maximum of 5 at one time) and a $9.00 certification fee. For copy requests exceeding these limits, customers are referred to contract copy services vendor, Judicial Research and Retrieval Services, Inc. A list of their services and fees can be found by clicking here: Judicial Research & Copy Service or by calling: Tampa (813) 228-7200; Orlando (407) 999-7717; and Jacksonville (813) 228-7200. (Note: Judicial Research also has staff on site in Tampa’s intake office.)
Files that are no longer housed in our courthouse facilities are archived at the Archive Center in Ellenwood, Georgia to retrieve files through the mail; the requestor must include the case name, case number, and $26.00 search fee for the archived information.
However, there is no charge for this information to customers who come to the Clerk’s office. The Clerk’s office will first verify the case was filed in that particular division. The clerk’s office will then provide the “Request for Bankruptcy Case File” form, with the accession number, box number, and location number. Once you receive this information, you may contact the Archive Center in Atlanta, Georgia, for copies. The telephone number for the center is (404) 763-7474, fax number is (404) 763-7815, and their website is: National Archives Center. Please note that the Archive Center requires a fee for this service.
Consult With an Experienced Central Florida Bankruptcy Attorney
If you find
yourself in financial trouble now is the time to take action. We
will conduct a thorough review of your financial situation to
determine whether Bankruptcy is right for you.
Contact Central Florida Bankruptcy attorney
Will Corzo or
Sam Kohrs toll free
877-99CK-LAW for a free consultation and explanation of your
rights.
The Central Florida law
firm of
Corzo and Kohrs practices in
Consumer and Individual Bankruptcy throughout central Florida,
including clients from Orange County, Osceola County, Seminole
County, Polk County, and Pinellas County and in cities such as
Orlando, Kissimmee, St. Cloud, Poinciana, Celebration, Hunter’s
Creek, Ocoee, Oviedo, Avalon Park, Windermere, Altamonte Springs,
Baldwin Park, Clermont, Winter Park, St. Petersburg, Seminole,
Clearwater, including clients from schools such as University of
Central Florida UCF, University of South Florida USF, Valencia
Community College, Full Sail, and other Central Florida schools.
Attorneys are available 24 hours a day and on weekends and holidays.