3 years ago

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 ...

3 7. If a

3 7. If a creditor requests a copy of the tax return at least 15 days before the meeting of creditors, the debtor(s) must provide a copy to that creditor at least 7 days before the meeting. 8. At the meeting of creditors, debtors must provide two forms of identification: a photo identification, such as a driver’s license or passport, and a proof of social security number (social security card, correspondence from the Social Security Administration, IRS form W‐2 or 1099). Corporate debtors must provide proof of ID as well as proof that the person appearing at the Meeting of Creditors has the authority to appear. 9. All debtors must attend the meeting of creditors and be examined under oath by the trustee. Creditors are invited to attend this meeting. 10. All debtors must cooperate with the trustee and respond to all reasonable requests for information and documents. 11. Within 45 days after the first scheduled date of the meeting of creditors, all consumer debtors must complete a Financial Management course approved by the Office of the United States Trustee and file a certificate of completion with the Court. This requirement does not apply to corporations or businesses. A CREDITOR’S OBLIGATIONS WHEN A PERSON FILES A BANKRUPTCY PETITION Immediately upon the filing of the bankruptcy petition, an automatic stay is imposed. The scope of that stay is described in detail in § 362 of the Bankruptcy Code. All collection activity must cease. For example, if you are involved in a civil lawsuit with the debtor, the case may not proceed without Bankruptcy Court approval or “relief” from the stay. There are some limitations on the stay, and those limitations are also found in § 362 of the Bankruptcy Code. LIMITED STAY/NO STAY Section 362(c)(3), (4) limits the stay for debtors who have filed bankruptcy before. If a debtor has had a pending bankruptcy case in the 12‐month period prior to the filing of the new case, the stay will enter upon filing of the new case. However, the stay will extinguish 30 days after the filing of the new case unless the debtor files a motion to extend the stay and that motion is filed, and heard within the 30 day period. If a debtor has had two (2) cases pending in the 12‐month period prior to the filing of the new case, no stay will take effect upon the filing of the new case in the absence of an order from the Bankruptcy Court.

4 Since there can be consequences for violating the stay, it is strongly recommended that you confer with counsel before taking any action against a debtor, the debtor’s property (and in some cases, the co‐debtor) without first seeking appropriate relief from the Bankruptcy Court. RELIEF FROM STAY A creditor is permitted to seek relief from the automatic stay. Section 362 describes the circumstances that a creditor may seek relief from the stay, and the Rules describe the procedural mechanisms that the creditor must use to seek relief from the stay. Motions for Relief from Stay must be accompanied by the appropriate filing fee and filed with the Clerk. The motion must also be accompanied with a Certificate of Service reflecting the date and method by which the motion was served on the appropriate parties. See Local Rule 4001‐1 for additional information on Motions for Relief from Stay. VIOLATIONS OF THE STAY A creditor who, despite knowing about the filing of the bankruptcy case, continues to engage in collection activity risks being found in violation of the stay. This might result in damages, costs and fees being assessed against the creditor. A creditor need not have official notice from the Bankruptcy Court that a bankruptcy case has been commenced to be aware of the bankruptcy. In fact, if a debtor verbally informs the creditor that a case has been commenced, that may be sufficient to find that any subsequent collection action was a knowing and intentional violation of the stay. If you have any questions or concerns about whether an activity might be considered a violation of the automatic stay, you are strongly urged to confer with competent counsel. DISCHARGE Assuming the debtor receives a discharge, the discharge permanently bars the creditor from collection of the debt. ATTORNEYS WORKING WITH PROFESSIONALS You may work with an attorney who can give you specific legal advice and guidance, tailored to your situation. To lawfully practice law in the U.S. Bankruptcy Court for the District of Massachusetts, the attorney must be a member in good standing of the bar of the U.S. District Court for the District of Massachusetts. In order to be a member of the bar of

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