Bankruptcy Frequent Questions
- Should I file bankruptcy?
- How long will my bankruptcy show on my credit report?
- Do I need to have an attorney?
- What is a Pro Se Debtor?
- What is the difference between Chapter 7, 11 & 13 cases?
- What information do I need to file a bankruptcy?
- When am I under bankruptcy protection?
- Will filing bankruptcy stop my wages from being garnished?
- Is my bankruptcy case public information?
- How can I file before or after hours?
- Where can I get the forms to file bankruptcy?
- What is a matrix?
- Can I pay my filing fee in installments?
- What forms of payment are accepted?
- What is a Meeting of Creditors? Do I need to attend?
- Will I ever have to go before a judge?
- What is a trustee?
- Are all of my debts canceled by the Bankruptcy Court?
- When will I get my discharge?
- Will all of my creditors be notified of my discharge?
- When will my case be closed?
- How do I get a copy of my discharge?
- How do I get copies of my bankruptcy?
- What is an adversary complaint?
- When I am filling out Schedule C - Property Claimed as Exempt, how do I know what property is exempt?
Should
I file bankruptcy? <back to top of
page>
Whether or not you should file
bankruptcy depends on your particular circumstances. It may be that
after consultation with an accountant and attorney, you resolve your
financial difficulties through other means. In some cases, declaring
bankruptcy may be necessary. The decision to file for bankruptcy is
a serious one.
How long will my bankruptcy show on my credit record?
<back to top of page>
The Fair Credit Reporting Act, 6 U.S.C.
Section 605, is the law that controls credit reporting. The law
states that credit reporting agencies may not report a bankruptcy
case on a person's credit report after ten years from the date the
bankruptcy case is filed. Other bad credit information is removed
after seven years. The larger credit reporting agencies belong to an
organization called the Associated Credit Bureaus. The policy of the
Associated Credit Bureau is to remove Chapter 11 and Chapter 13
cases from the credit report after seven years to encourage debtors
to file under these chapters. The bankruptcy court has no influence
over these reporting policies.
Do I need to have an attorney? <back
to top of page>
If you are an individual filing bankruptcy, you may represent
yourself. This is referred to as being Pro Se. The decision to go
forward as a pro se litigant should only be taken after serious
consideration. Individuals may file without an attorney and
represent themselves. Corporations cannot file without an attorney.
What is
a Pro Se Debtor? <back to top of
page>
If you are representing yourself without
the benefit of an attorney, you are known as a pro se litigant. "Pro
Se" is a Latin term meaning "for yourself." As a pro se litigant,
you enjoy every right entitled to you under the law. Pro se
litigants are expected to follow and abide by the rules that govern
the practice of law in the Federal Courts. Pro se litigants should
be familiar with the United States Code, the Federal Rules of
Bankruptcy Procedure and the Local Rules of the Eastern District of
Louisiana.
What is the difference between Chapter 7, 11 & 13 cases?
<back to top of page>
Chapter 7 - Liquidation: This chapter of
the U.S. Bankruptcy Code provides for an orderly court-supervised
means of selling certain assets to pay your creditors. In a Chapter
7 case, a trustee is appointed to take charge of your "estate"
consisting of all your assets. The law may allow you to keep some of
your property. The trustee will sell the rest to pay your creditors.
Unless someone objects, some or all of your debts will be discharged
within a few months after the bankruptcy petition is filed.
Chapter 11 - Reorganization: This Chapter of the U.S. Bankruptcy Code is available to individuals, businesses and other entities, but is primarily intended to allow an ongoing business to restructure its debts. Successful reorganization is dependent on the debtor filing what is called a "reorganization plan" and obtaining the acceptance of creditors and approval by the court for such a plan.
Chapter 13 - Adjustment of Debts for an Individual with Regular Income: This Chapter of the U.S. Bankruptcy Code provides a court-supervised method for a debtor to pay back creditors over a period of time of up to five years. The debtor files a plan for repayment with the bankruptcy petition or soon thereafter. Payments must begin within thirty days after the case has begun. The payments are made to a trustee who will begin paying the creditors after the plan has been approved by the court.
What information do I need to file a bankruptcy? <back to top of page>
- Home address
- Social Security Number
- Employer's name and address
- Salary and wage information
- A list of all those to whom you legally owe money
- A list of all your major property (for example: real estate, automobiles, boats, furniture, etc.)
- A list of all your personal sources of income
- A list of all your financial accounts (for example: checking and savings accounts, savings bonds, etc.)
- A list of all your monthly expenses (for example: rent, food, child support, transportation, etc.)
- A copy of your federal and state tax returns for the past two years.
When am I under
bankruptcy protection? <back to top
of page>
You are under bankruptcy protection when
and after your petition is filed and a case number is assigned. The
moment a petition is filed there exists an automatic stay, or
suspension, of virtually all litigation and other action by
creditors against the debtor or the debtor's property. In other
words, once a petition has been filed, creditors cannot commence or
continue most legal actions, such as foreclosure of liens, execution
on judgments, trials, (garnishments), or any action to repossess
property in the hands of the debtor. Creditors can, however, seek to
have the court allow them to pursue or continue legal collection
actions.
Will filing bankruptcy stop my wages from being garnished?
<back to top of page>
Yes, once you file bankruptcy, you are
under protection of the court from most creditors. You should
immediately notify the garnishing creditor and sheriff that you have
filed a bankruptcy petition.
Is my bankruptcy
case public information? <back to top
of page>
Yes, bankruptcies are considered public
record. Anyone may call the court and verify if you have filed
bankruptcy or may come into our offices and review the file.
How can I file
before or after hours? <back to top
of page>
All pleadings must be filed
electronically (click
here for
more information on electronic filing). Support on electronic filing
is available Monday through Friday between 8:30 a.m. and 4:30
p.m. by calling our help line at (504) 589-7878. The only pleadings
considered an emergency are petitions to stop a sheriff's sale or
seizure. To arrange for the filing of an emergency petition, please
contact the Clerk's Office between 8:30 a.m. and 4:30 p.m.
Where can I
get the forms to file bankruptcy?
<back to top of page>
Forms can be purchased in some legal
stationery stores or business supply stores. Check your local area
yellow pages. Forms can also be downloaded from
www.uscourts.gov.
What is a
matrix? <back to top of page>
A matrix is a list of all creditors in a
bankruptcy case, including the names and addresses of each creditor.
The list is used for electronic noticing required during the course
of your bankruptcy case. The matrix should be submitted at the time
of the filing of your case.
Can I pay my
filing fee in installments? <back to
top of page>
Yes, if you are an individual in a voluntary case, Bankruptcy Rule
1006 allows the debtor the right to apply for permission to pay the
filing fee in installments. The debtor must complete and sign the
Application to Pay Filing Fees in Installments. The application must
state the proposed terms of the installment payments. The entire
filing fee must be paid within 120 days of the filing of the
petition in four or fewer installment payments. Failure to pay
filing fee installments on time may result in dismissal of your
case. If your case is dismissed before all the installment payments
have been paid, you are required to pay these fees that are due and
owing to the Court.
What forms of payment
are accepted? <back to top of page>
Pro se debtors may pay with cash,
cashier's check, or money order. The Clerk's Office does not accept
two-party checks or personal checks from the debtor in bankruptcy.
What is
a Meeting of Creditors? Do I have to attend?
<back to top of page>
The first meeting of creditors is
required under Section 341 of the Bankruptcy Code and the debtor is
required to attend. The purpose of the meeting is to enable the
appointed trustee to examine the debtor under oath regarding the
information that has been filed with the Court. The trustee or a
creditor may inquire about the debtor's financial status, conduct
and financial affairs, and any other matters that are relevant to
the administration of the debtor's estate, including factors which
bear on an individual debtor's right to a discharge or to the
dischargeability of any particular obligation, or the debtor's
claimed exemptions. If a creditor wishes to do an in-depth
examination, he or she should request a Rule 2004 examination from
the Court. Failure of the debtor to attend this meeting may result
in dismissal of the bankruptcy case. Individual debtors must provide
picture identification and proof of social security number to the
trustee to whom the case is assigned at the meeting of creditors.
Failure to do so may result in your case being dismissed.
Will I ever have to
go before a judge? <back to top of
page>
All contested matters will be heard by
the judge if one of the parties files a motion or a response or
objection to that motion. As a pro se debtor, you will be notified
of any hearings and will be expected to attend.
What is a
trustee? <back to top of page>
A trustee is a person who works with the
court to administer bankruptcy cases. The trustee does not represent
the debtor or any individual creditor and cannot give legal advice.
Rather, the trustee has independent rights and duties that are set
forth in the Bankruptcy Code sections 323, 327, 341, 343, 345, 363,
364, 365, 704 (chapter 7 cases) and 1302 (chapter 13 cases). In a
chapter 7 case, the trustee may take possession of the debtor's
assets, sell them, and distribute the proceeds to creditors. In a
chapter 13 case, the trustee administers the debtor's plan of
payment, collects the funds, and pays the creditors. The trustee
will also oversee the first meeting of creditors.
Are all of my debts canceled by the Bankruptcy Court?
<back to top of page>
No, certain debts are not canceled by
the US Bankruptcy Court. Examples include taxes, school loans, debts
resulting from fraud, alimony and child support payments. Other
debts are canceled only if your petition is approved by the US
Bankruptcy Court.
Specific questions you have should be directed to an attorney or financial advisor. The Clerk of the Bankruptcy Court can answer questions about court procedures for you but is prohibited by law from giving legal advice.
When will I get my discharge? <back
to top of page>
Individual debtors are eligible to receive their Chapter 7 discharge
60 days from the date set for the 341 meeting, unless a creditor
objects in a timely manner or the court orders otherwise. In the
normal case where no complaint objecting to the discharge is filed,
the debtor will receive a discharge within five working days after
the 60 days has passed.
Will
all of my creditors be notified of my discharge?
<back to top of page>
All creditors who were listed on your
mailing matrix or who entered an appearance in your case will be
notified.
When will my case be closed? <back to
top of page>
Since all cases bear unique
circumstances, it is difficult to pinpoint an exact time that your
case will be closed. Many chapter 7 no asset cases are closed within
90 days from filing if no disputes have arisen. Chapter 7 asset
cases require that the trustee liquidate the assets which often
takes several years. Chapter 13 cases remain open as long as the
plan payments are being made, generally for three to five years
after the plan has been confirmed. Chapter 11 reorganization cases
are more complicated and may remain open longer than three years
even if a plan has been confirmed.
How do I get a copy
of my discharge? <back to top of
page>
You will receive a copy of your
discharge in the mail after it is entered. However, if some time has
passed and you have not received your discharge or you need another
copy please call the Clerk's Office (504-589-7878).
**After filing, it is very important that the debtors retain his/her bankruptcy papers for future reference. Sometimes the information may be needed for a future home purchase or other business transactions that will require proof of filing and discharge.**
How can I get
copies of my bankruptcy? <back to top
of page>
If an attorney files a case on your
behalf, the attorney is responsible for supplying you with a copy of
the petition and all other documents pursuant to the declaration of
electronic filing. If you file as a pro se debtor, it is your
responsibility to retain copies of your documents. However, should
you need additional copies, you may contact the Clerk’s Office for
assistance in obtaining copies.
What is an adversary complaint? <back
to top of page>
An adversary complaint is a "case within
a case." It is civil litigation, usually involving funds or property
which may have an impact on the bankruptcy estate.
When I am filling out Schedule C - Property Claimed as Exempt, how
do I know what property is exempt?
<back to top of page>
Under state and federal laws, debtors
are entitled to keep certain exempt property. The Clerk's Office
cannot give legal advice. You can, however, research the Louisiana
statutes for more information on allowable exemptions.
