Category: Bankruptcy

The Automatic Stay what is it? Why is it important in Bankruptcy Practice?

What is the Automatic Stay?

When a bankruptcy is filed, in most cases, an automatic court order goes into effect that prevent most creditors from collecting against debts. This automatic court order is known as the automatic stay. In the bankruptcy code it is found at 11 USC 362.

In general most types of collections are stayed when a bankruptcy is filed. This would include even debts that might not ultimately be discharged. For example, many taxes are not discharged but the taxing agency may not collect during the discharge.

How long does the Automatic Stay last?

The automatic stay remains in effect until either the bankruptcy is discharged or dismissed. There are exceptions to this. A secured creditor may request that the stay be lifted in order to collect on a debt in which they lack “adequate protection”. Another exception is if there are prior bankruptcies that were dismissed within the past 12 months. If there is one prior dismissal then the stay only lasts 30 days unless there is a motion to extend it. If there are two or more bankruptcies then the debtor must requests that a stay be granted.

Are there exceptions to the Automatic Stay?

Yes, Child support is specifically excepted from the automatic stay. Furthermore a state court may evict a tenant despite the stay when the evicting court has already issued an order for the eviction. Since Bankruptcy only deals with civil debts, a criminal court is under no obligation to stay their proceedings. There are additional exceptions that are found in the bankruptcy code.

What about Garnishments and Utility Shutoffs?

Even if there is a garnishment that is proceeding the garnishment is stayed upon the filing of the bankruptcy. Any monies that were collected after the filing of the case will be returned to the client. Furthermore if there is a utility shutoff, upon the filing of the case the utilities should be restore. However, if the debtor acted fraudulently in obtaining the utility (such as reopening the gas line illegally after it is shutoff) the utility is under no obligation to set it up again.

Phone Calls?

The automatic stay prevents a creditor from calling you to collect a debt. I find that companies take this rule very seriously and will stop all correspondence including regular statements, whether or not you want them to send the correspondence.

What if a creditor violates the automatic stay?

If the creditor had no knowledge of the automatic stay then they may be responsible for recouping certain type of damages (example would be returning a garnishment), but they would not be liable for attorney fees. If on the other-hand the company willfully violated the order, then the company would be liable for attorney fees that were expended by the debtor in enforcing the order. The bankruptcy judge upon the filing of a motion would make that determination.

341 Hearing – Meeting of the Creditors Chapter 7

What are the basics

Typically a debtor need attend only one hearing which is different than other forms of litigation. The hearing is typically held one month after filing, but, depending on case load, may be held later than that.

Location

The location of the hearing depends on which county you live in. For Lake, Cuyahoga, Lorain, and Geauga counties, you are assigned to Cleveland. If you live in Summit, Portage, or Medina Counties you are assigned to Akron. The meeting locations is not always the courthouse. In Akron, the hearings are held in a shopping mall. Cleveland, Youngstown and Canton are held in their Courts. Ashtabula County (which is part of Youngstown’s court system) meetings in Jefferson. It is therefore important that you keep your hearing notice. Here are the meeting locations in our trustee region.

The Reason for the 341 Hearing

You do not see a judge at a 341 hearing (if all goes well you will never meet the judge). Instead you meet someone who is know as the trustee. He or she is the closest person to an opposing counsel you will meet in the bankruptcy system. The job of a Trustee is to determine if there is anything that he or she can take from your, sell it, and deliver the proceeds to the creditors. This examination is being done to determine if there is anything that they can take.

While the above paragraph may sound a little frightening, most of the trustees are actually nice and all that I have come across are fair. Furthermore, the trustees as well as ourselves must follow the law. That law is pretty clear what a trustee may or may not take so there is likely to be no surprises.

What You Need to Bring

The rules of bankruptcy procedure require that your bring three items to your bankruptcy hearing.

  • A government issued id (drivers license or state id)
  • A government issued document with your social security number on it (social security card, social security statement, 1099, w2 But not your tax return or your bankruptcy notice
  • Your most recent bank statement
  • Most recent paystub

Furthermore the Bankruptcy Code requires under 11 USC 521(e)(2) that I provide the trustee with a copy of your most recent tax return 7 days prior to your hearing. If that does not happen the court can dismiss the case.

What to Wear and Kids

I would suggest business casual for the hearing. Pants and a collared shirt is adequate. It is not a good idea to bring your kids to this hearing, but if there is no alternative make sure that they behave during the hearing.

How Long

The hearing itself should last about 5-10 minutes. However keep in mind that they may not call you right away. The questions that will be asked are similar to the questions that I asked at the signing consultation, except where most of the time at a signing is focused on the debts, this hearing will be focused on property.

What Happens Next

After the hearing, the trustee may ask for additional documents, require you to come to an additional hearing, or conclude and end the hearing.

At a later date I will go into greater detail about this hearing.

THE CHAPTER 13 PROCESS

STEP ONE – INITIAL CONSULTATION

WHERE – East Side Office – 22408 Lake Shore, Euclid, OH 44123 or West Side Office – 13326 Madison Avenue, Lakewood, OH 44107.

WHAT DO I BRING – 2 Paystubs, Tax Return, and a List of Debts, the bills, or your credit report.

WHAT ARE WE DOING AT THIS CONSULTATION – We are going over your financial position to determine if you qualify for a Chapter 7 or Chapter 13 bankruptcy. In a Chapter 13, a key issue is what the plan payment will be. We will try to do an analysis of your debt (more so than we would in a Chapter 7 Bankruptcy. Therefore it is important that you bring information on your secured debt.

Fee – No, this is a free consultation and you are not obligated to go any further.

How Long – 45 mins to 1 Hour

STEP TWO – CONSUMER COUNSELING COURSE

WHERE – Online Course

Recommended Course – DebtorCC – www.debtorcc.org – cost $14.95

List of Other Approve Companies – United States Trustee ListNote – We are in the Northern District of Ohio

WHY DO I HAVE TO DO THIS – Under the Section 109(h)(1) of the Bankruptcy Code a debtor must take this course to qualify to file for bankruptcy. If the case is filed without the certificate, it will be dismissed.

STEP THREE – SIGNING CONSULTATION

WHERE – East Side Office – 22408 Lake Shore, Euclid, OH 44123 or West Side Office – 13326 Madison Avenue, Lakewood, OH 44107.

WHAT DO I BRING – I typically give you a customized list. However every case requires the most recent tax return, 2 months of pay stubs, the debts you want to include on the bankruptcy, and a copy of your car title.

WHAT ARE WE DOING – We are reviewing our notes from the Initial Consultation (Step One) and we are preparing a document called a bankruptcy petition. Since this is a Chapter 13 we are also putting together a Chapter 13 Plan. We will list all your assets and debts into the petition and its total length is about 60-70 pages in most cases. I will also be copying documents that you bring with you. Finally at the end, we will sign the document, and if everything is in order, file the case. (Step Four).

HOW LONG DOES THIS MEETING TAKE? – 2 – 3 Hours.

FEES – Typically I would ask for the pre-filing fee at this point. The remaining amount of the bankruptcy fee will be provided as a claim in the bankruptcy plan. Court costs should also be paid at this moment, however, it makes sense at time to enter an installment plan with the court (though this is more difficult to do in a Chapter 13.

STEP FOUR – CASE FILED

WHEN – Usually at the signing consultation, however if there is a need for delay (not all requirements met) we file when those requirements are met.

WHAT HAPPENS WHEN I FILE – An automatic stay is impose that prevents most collection actions (garnishments, utility shutoff’s, repossessions).

ARE THE PLAN ARRANGEMENTS MADE AT THIS TIME – Yes, we will prepare and file what is know as a wage order. It will be filed with the court, approved by the judge, and sent to your employer. They will then start making pro rata payments to the bankruptcy trustee.

STEP FIVE – FIRST PAYMENT

WHY IS THIS IMPORTANTThis is the most important step if you want a successful chapter 13. It will take about a month for the wage order to kick in. This does not excuse you from making the first payment on the bankruptcy. The plan payment is due within 30 days of filing. If you do not do this, you will be a month behind by the time the wage order kicks in. This can result in a dismissal by the time we reach the confirmation hearing.

WHERE DO I MAKE THE PAYMENT TO – Cleveland Trustee – Craig Shopneck, Chapter 13 Trustee, P.O. Box 593, Memphis, TN 38101-0593. Make sure that your case number and name must be on the check or money order.

STEP SIX- 341 HEARING

WHERE – United States Trustee Hearing Room (In Cleveland) – 201 Superior Avenue, Cleveland, OH 44114. It is on the sixth floor.

WHAT TO BRING – Your ID and your Social Security Card.

WHEN – Approximately 30-45 days after the filing of your case.

DOES THE ATTORNEY ATTEND – Yes I do.

WHAT IS THIS FOR – Under Section 341 of the Bankruptcy Code (hence the name), a court official known as a trustee has to conduct a meeting concerning your petition. The Chapter 13 341 is a bit different than a Chapter 7 341. First of all there is less emphasis on the property and more emphasis on making sure that income, expenses, and plan provisions are correct. The meetings are generally shorter and they are also less confrontational. Basically the idea is to make sure that everything is in order.

STEP SEVEN- OBJECTION TO CONFIRMATION

WHAT IS THIS ABOUT – Usually within a few days after the 341 hearing the trustee will object to the confirmation of the bankruptcy plan. Not all cases receive an objection but most cases do. The trustee is communicating in their objection what they believe must be done before the court will confirm the case. This can include modification to the bankruptcy plan (changing the plan payment), amendment to the petition (to clarify some aspect of the case), or request for more information.

Generally if the provisions are met the Trustee will withdraw their objection (either prior to or at the confirmation hearing). Objections are written in a form format and are delivered both to the client and the attorney.

STEP EIGHT – CONFIRMATION HEARING

WHEN – Usually 21-35 days after the 341 hearing.

MUST I ATTEND – – No, just the attorney and the trustee attend.

WHAT IS THIS ABOUT? – A hearing is held in front of the Bankruptcy Judge to determine whether the plan should be allowed to continue. It is done on a motion docket, so the judge will spend about 3 – 5 minutes on each case and make rulings on motions. For the confirmation, the trustee usually goes first and recommends whether the plan should be confirmed or not. If the trustee recommends confirmation, then the plan is confirmed, and if the debtor continues to make his plan payment through the duration of the plan (between 3-5 years) the debtor will receive a discharge.

If the trustee does not recommend confirmation, then the court can and often adjourns the case so that the conditions can be met for the plan to be confirmed. If after a few tries the plan is not confirmed then the case will be dismissed.

The one exception to adjournment is when the plan is inadequately funded. At that point the court is likely to dismiss the case. If the funds become available we can file a motion to reinstate.

STEP NINE- FINANCIAL MANAGEMENT COURSE

WHERE – Online Course

Recommended Course – DebtorCC – www.debtorcc.org – cost $9.95

List of Other Approve Companies – United States Trustee ListNote – We are in the Northern District of Ohio

WHY DO I HAVE TO DO THISUnder of the Bankruptcy Code section 727(a)(11) a debtor must complete the financial management course in order to receive a discharge. Failure to do this will result in the case being closed without discharge which requires a motion to reopen (court cost $260.00)

Special heed should be taken in Chapter 13 Cases because the cases typically run 3-5 years. It is easy to forget this course at the end. It is disheartening to go through a plan paying all the money into the plan to only find out that you must pay a 260 dollar court costs to get the discharge. Therefore, do the course shortly after confirmation when you know that your plan is approved.

STEP TEN- DISCHARGE

WHEN – If the Debtor makes it through the 3-5 years of the plan and has met all the obligations of the plan, the court will discharge the case. If you had a car loan in your plan, the car should be paid in full and you should receive the title. If you were behind on your mortgage you should be caught up. You should also be current on pre-petition taxes and child support. If you made it this far, congratulations, you have put yourself in a financially good position.

THE CHAPTER 7 PROCESS

STEP ONE – INITIAL CONSULTATION

WHERE – East Side Office – 22408 Lake Shore, Euclid, OH 44123 or West Side Office – 13326 Madison Avenue, Lakewood, OH 44107.

WHAT DO I BRING – 2 Paystubs, Tax Return, and a List of Debts, the bills, or your credit report.

WHAT ARE WE DOING AT THIS CONSULTATION – We are going over your financial position to determine if you qualify for a Chapter 7 or Chapter 13 bankruptcy. Furthermore we are looking for any issues that might arise in your case, and given them, whether you should file the bankruptcy.

Fee – No, this is a free consultation and you are not obligated to go any further.

How Long45 mins to 1 Hour

STEP TWO – CONSUMER COUNSELING COURSE

WHERE – Online Course

Recommended Course – DebtorCC – www.debtorcc.org – cost $14.95

List of Other Approve Companies – United States Trustee ListNote – We are in the Northern District of Ohio

WHY DO I HAVE TO DO THIS – Under the Section 109(h)(1) of the Bankruptcy Code a debtor must take this course to qualify to file for bankruptcy. If the case is filed without the certificate, it will be dismissed.

STEP THREE – SIGNING CONSULTATION

WHERE – East Side Office – 22408 Lake Shore, Euclid, OH 44123 or West Side Office – 13326 Madison Avenue, Lakewood, OH 44107.

WHAT DO I BRING – I typically give you a customized list. However every case requires the most recent tax return, 2 months of pay stubs, the debts you want to include on the bankruptcy, and a copy of your car title.

WHAT ARE WE DOING – We are reviewing our notes from the Initial Consultation (Step One) and we are preparing a document called a bankruptcy petition. We will list all your assets and debts into the petition and its total length is about 60-70 pages in most cases. I will also be copying documents that you bring with you. Finally at the end, we will sign the document, and if everything is in order, file the case. (Step Four).

HOW LONG DOES THIS MEETING TAKE? – 2 – 3 Hours.

FEES – Typically I would ask for the first half of the attorney fee. Also the court cost may be due at this time if there is an ability to pay it. If not, then we would enter in with a court installment plan.

STEP FOUR – CASE FILED

WHEN – Usually at the signing consultation, however if there is a need for delay (not all requirements met) we file when those requirements are met.

WHAT HAPPENS WHEN I FILE – An automatic stay is impose that prevents most collection actions (garnishments, utility shutoff’s, repossessions).

STEP FIVE – 341 HEARING

WHERE – United States Trustee Hearing Room (In Cleveland) – 201 Superior Avenue, Cleveland, OH 44114. It is on the sixth floor.

WHAT TO BRING – Last Bank Statements, your ID, and your Social Security Card.

WHEN – Approximately 30-45 days after the filing of your case.

DOES THE ATTORNEY ATTEND – Yes I do.

WHAT IS THIS FOR – Under Section 341 of the Bankruptcy Code (hence the name), a court official known as a trustee has to conduct a meeting to determine, among other things, whether you have any property that should be turned over to the bankruptcy court so that it is sold with the proceeds going to the creditors. The purpose of steps one and three was to ensure that you were fully informed of any possibilities of this happening. In most cases it does not, because bankruptcy exemptions protect your property.

STEP SIX – FINANCIAL MANAGEMENT COURSE

WHERE – Online Course

Recommended Course – DebtorCC – www.debtorcc.org – cost $9.95

List of Other Approve Companies – United States Trustee ListNote – We are in the Northern District of Ohio

WHY DO I HAVE TO DO THISUnder of the Bankruptcy Code section 727(a)(11) a debtor must complete the financial management course in order to receive a discharge. Failure to do this will result in the case being closed without discharge which requires a motion to reopen (court cost $260.00)

STEP SEVEN – DISCHARGE

WHEN – Discharges are usually issued the Wednesday after the sixtieth day from the 341 hearing (Step Five). Wednesday is when they typically do it in Cleveland (it varies in other jurisdictions). This court costs must be paid prior to the court issuing a discharge. Furthermore if there is litigation in the case, this can result in a delay in the discharge. An adjourned 341 hearing typically do not interfere with the discharge date.

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THE CHAPTER 7 PROCESS

STEP ONE – INITIAL CONSULTATION

WHERE – East Side Office – 22408 Lake Shore, Euclid, OH 44123 or West Side Office – 13326 Madison Avenue, Lakewood, OH 44107.

WHAT DO I BRING – 2 Paystubs, Tax Return, and a List of Debts, the bills, or your credit report.

WHAT ARE WE DOING AT THIS CONSULTATION – We are going over your financial position to determine if you qualify for a Chapter 7 or Chapter 13 bankruptcy. Furthermore we are looking for any issues that might arise in your case, and given them, whether you should file the bankruptcy.

Fee – No, this is a free consultation and you are not obligated to go any further.

How Long45 mins to 1 Hour

STEP TWO – CONSUMER COUNSELING COURSE

WHERE – Online Course

Recommended Course – DebtorCC – www.debtorcc.org – cost $14.95

List of Other Approve Companies – United States Trustee ListNote – We are in the Northern District of Ohio

WHY DO I HAVE TO DO THIS – Under the Section 109(h)(1) of the Bankruptcy Code a debtor must take this course to qualify to file for bankruptcy. If the case is filed without the certificate, it will be dismissed.

STEP THREE – SIGNING CONSULTATION

WHERE – East Side Office – 22408 Lake Shore, Euclid, OH 44123 or West Side Office – 13326 Madison Avenue, Lakewood, OH 44107.

WHAT DO I BRING – I typically give you a customized list. However every case requires the most recent tax return, 2 months of pay stubs, the debts you want to include on the bankruptcy, and a copy of your car title.

WHAT ARE WE DOING – We are reviewing our notes from the Initial Consultation (Step One) and we are preparing a document called a bankruptcy petition. We will list all your assets and debts into the petition and its total length is about 60-70 pages in most cases. I will also be copying documents that you bring with you. Finally at the end, we will sign the document, and if everything is in order, file the case. (Step Four).

HOW LONG DOES THIS MEETING TAKE? – 2 – 3 Hours.

FEES – Typically I would ask for the first half of the attorney fee. Also the court cost may be due at this time if there is an ability to pay it. If not, then we would enter in with a court installment plan.

STEP FOUR – CASE FILED

WHEN – Usually at the signing consultation, however if there is a need for delay (not all requirements met) we file when those requirements are met.

WHAT HAPPENS WHEN I FILE – An automatic stay is impose that prevents most collection actions (garnishments, utility shutoff’s, repossessions).

STEP FIVE – 341 HEARING

WHERE – United States Trustee Hearing Room (In Cleveland) – 201 Superior Avenue, Cleveland, OH 44114. It is on the sixth floor.

WHAT TO BRING – Last Bank Statements, your ID, and your Social Security Card.

WHEN – Approximately 30-45 days after the filing of your case.

DOES THE ATTORNEY ATTEND – Yes I do.

WHAT IS THIS FOR – Under Section 341 of the Bankruptcy Code (hence the name), a court official known as a trustee has to conduct a meeting to determine, among other things, whether you have any property that should be turned over to the bankruptcy court so that it is sold with the proceeds going to the creditors. The purpose of steps one and three was to ensure that you were fully informed of any possibilities of this happening. In most cases it does not, because bankruptcy exemptions protect your property.

STEP SIX – FINANCIAL MANAGEMENT COURSE

WHERE – Online Course

Recommended Course – DebtorCC – www.debtorcc.org – cost $9.95

List of Other Approve Companies – United States Trustee ListNote – We are in the Northern District of Ohio

WHY DO I HAVE TO DO THISUnder of the Bankruptcy Code section 727(a)(11) a debtor must complete the financial management course in order to receive a discharge. Failure to do this will result in the case being closed without discharge which requires a motion to reopen (court cost $260.00)

STEP SEVEN – DISCHARGE

WHEN – Discharges are usually issued the Wednesday after the sixtieth day from the 341 hearing (Step Five). Wednesday is when they typically do it in Cleveland (it varies in other jurisdictions). This court costs must be paid prior to the court issuing a discharge. Furthermore if there is litigation in the case, this can result in a delay in the discharge. An adjourned 341 hearing typically do not interfere with the discharge date.

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