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a guide for the pro se creditor in a bankruptcy case - District of ...

a guide for the pro se creditor in a bankruptcy case - District of ...

1 LEGAL AUTHORITY,

1 LEGAL AUTHORITY, STATUTES AND RULES The letters “U.S.C.” refer to the United States Code. The number that precedes “U.S.C.” refers to the title of the U.S. Code (e.g., 11 U.S.C.). The numbers following “U.S.C.” refer to the section of the title of the U.S. Code (e.g. “11 U.S.C. § 109”). The United States Bankruptcy Code is found in Title 11 of the U.S. Code. Copies of the United States Code are available at public libraries and may also be found on line (links to the Code are found at the U.S. Bankruptcy Court’s website: www.mab.uscourts.gov). In this manual, references only to the section number refer to the section of the Bankruptcy Code (i.e., title 11). In addition to the U.S. Code, there are Federal and Local Rules that apply to every case. Links to the Federal Rules of Bankruptcy Procedure (“Fed. R. Bankr. P.) as well as the Local Rules for the U.S. Bankruptcy Court for the District of Massachusetts (“Local Rules”) are found at the United States Bankruptcy Court’s website: www.mab.uscourts.gov., In this manual, they are collectively referred to as the “Rules.” Also on the Bankruptcy Court’s website you will find links to Official, Procedural and Local forms If you are a pro se creditor you must become acquainted with the duties and obligations imposed by the Code and the Rules. WHO IS A CREDITOR? The U.S. Bankruptcy Code defines a creditor as “entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor;… entity that has a claim against the estate of a kind specified in section 348(d), 502(f), 502(g), 502(h) or 502(i) of this title; or…..entity that has a community claim.” See § 101(10). The term “claim” means a right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured” or a “right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured, or unsecure.” See § 101(5). And the term “community claim” means a claim that arose before the commencement of the case concerning the debtor for which property of the kind specified in section 541(a)(2) of this title is liable, whether or not there is any such property at the time of the commencement of the case.” § 101(7).

2 While these definitions are important, most individuals understand that they are a creditor if they are owed money by a person or corporation that has filed a bankruptcy petition in the U.S. Bankruptcy Court. OVERVIEW OF THE BANKRUPTCY PROCESS FROM THE CREDITOR’S PERSPECTIVE This section will give you a glimpse into the bankruptcy process, the steps involved in most cases, and what a debtor must do to effectively navigate a case through this Court. 1. Consumer debtors 1 must receive “an individual or group briefing (including a briefing conducted by telephone or on the Internet) that outlined the opportunities for available credit counseling and assisted such individual in performing a related budget analysis.”11 U.S.C. § 109(h). The briefing must be obtained within 180 days before the petition is filed. The court may excuse this requirement if exigent circumstances exist, or in the case of disability. See 11 U.S.C. § 109(h)(3), (4). 2. All debtors must use official forms, including the Means Test Calculations form (form 22), and they must be completed accurately and filed with the Court. 3. The certificate of credit counseling must be filed with the official forms. 4. All debtors must pay the filing fee in full or a. File an Application to Waive the Filing Fee, which must be approved by the Court; b. File an application to Pay the Filing Fee in Installments, which must be approved by the Court. 5. At least 7 days before the scheduled meeting of creditors (also referred to as a § 341 meeting), all debtors must send the trustee a copy of their prior year’s federal income tax return. 2 6. In addition to the tax return, at least 7 days before the scheduled meeting of creditors, all debtors must send the trustee copies of all pay stubs and other evidence of income received within the 60 day period prior to the filing of the case. 1 “The term ‘debtor’ means a person ….concerning which a case under this title has been commenced.” 11 U.S.C. § 101(13). For other definitions of terms, see § 101 and the Glossary at the end of this Guide. 2 Debtors may also provide the trustee and/or a creditor with a transcript of the applicable tax return.

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