A. Trustees and the Beginning of a Bankruptcy Case
1) Do Debtors Need to Send Anyone a Copy of the Bankruptcy Petition Package?
2) How Do I Amend Documents I Have Filed with the Court, Including Change of Address?
3) What Does the Bankruptcy Case Number Mean?
4) What is the Location and Function of the Office of U.S. Trustee?
5) Does Every Bankruptcy Case Have a Trustee?
6) What is the Role of a Trustee in a Bankruptcy Case?
7) Do I Find Out Who is the Trustee in a Bankruptcy Case?
B. Creditors, Motions, Adversary Proceedings
8) How Does the Court Notify Creditors of a Bankruptcy Case?
9) What is a 341(a) Meeting of Creditors, and Who Must Attend the Meeting?
10) What Do I Do if an Individual or Business Filed for Bankruptcy and Owes Me Money?
11) I am a Landlord and My Tenant/Lessee Filed For Bankruptcy. What Happens Now?
12) How do Creditors File for Relief from the Automatic Stay?
13) What do Debtors File to Have the Stay Imposed or Continued?
14) Whom do I notify about Possible Fraudulent Activity in a Bankruptcy Case
15) What is a Motion and Notice of Motion, and Must a Response be Filed?
16) Do all Motions Require a Court Hearing?
17) What Happens if a Motion Does Not Require a Hearing?
18) What is the Difference Between a Bankruptcy Case and an Adversary Proceeding?
19) What if a Lawsuit was Filed Before the Bankruptcy Case Was Filed?
20) Can Lawsuits be Filed After the Bankruptcy Case is Filed?
21) Are There Special Deadlines and Procedures for Adversary Proceedings?
22) What if My Attorney is Not a Bankruptcy Attorney?
23) What if My Attorney is not Licensed in California?
24) What if My Attorney is Not Admitted to Practice in the Central District of California?
C. Court Hearings, Orders
25) How Do I Obtain a Hearing Date on My Motion and Provide Notice of the Hearing?
26) How Can I Have a Motion Heard on Shortened Time (Ex Parte)?
27) Do Judges Allow Telephonic Appearances or Make Tentative Rulings?
28) What if I am Late for a Hearing?
29) What is an Order or Judgment?
30) What if I Disagree With the Judge’s Legal or Factual Conclusions?
31) What if the Order Misstates the Judge’s Legal or Factual Conclusions or Ruling?
D. Discharge of Debts
E. Dismissal, Conversion or Closing of a Bankruptcy Case
36) What is the Difference Between Dismissal, Conversion & Closing of a Bankruptcy Case?
37) Can the Debtor Voluntarily Dismiss or Convert a Bankruptcy Case?
38) Can the Court Dismiss or Convert a Bankruptcy Case Without the Debtor’s Consent?
39) How do I Reopen a Bankruptcy Case, and is a Fee Required?
40) How do I get a Bankruptcy Removed from My Credit Report?
|.1.||Do Debtors Need to Send Anyone a Copy of the Bankruptcy Petition Package?||A debtor does not need to send a copy of its bankruptcy petition package to any creditors because the court will mail a notice of the bankruptcy case to all creditors listed in the debtor’s bankruptcy petition package. However, a debtor may wish to call or write to creditors who are taking action against a debtor (e.g. foreclosure, lawsuits, daily phone calls), or an agency that is executing on a judgment (e.g. sheriff). If so, a debtor should provide the creditor or sheriff with a bankruptcy case number or a conformed copy of the front page of the bankruptcy petition package.|
|.2.||How Do I Amend Documents I Have Filed with the Court, Including Change of Address?||It is a debtor’s duty to ensure that the information provided in the bankruptcy petition package (Petition and other forms) is correct. This means that the correct “form” must be used, and the form must contain correct information. If a debtor needs to filed an amended document because the debtor filed the incorrect version of a form or inserted inaccurate information on a correct version of a form, a debtor must take four or five steps:
a) File With the Court the Document that Contains the Amended Information (Schedule, Statement, etc.) – If an incorrect or outdated version of a form was used, prepare, sign and file the correct version of the form. Click here for a list of forms. If the correct version of a form was used, but the information inserted on the form is not accurate, prepare, sign and file the form with the revised information;
b) File With the Court a Form Titled “Amendment of Schedule(s) And/Or Statement(s).” This form should be filed at the same time that the amended document is filed, and is available at any clerk’s office location. Click here to download a copy;
c) Pay a fee – Click here to determine the fee required .
d) Mail a copy of the amended document and Amendment of Schedules(s) And/Or Statement(s) to all creditors.
e) File an Electronic Filing Declaration – If the debtor’s attorney files an amendment via CM/ECF, it may be necessary for the debtor to sign and date a new Electronic Filing Declaration. Click here to download a copy (Link to CM/ECF Home Page, Electronic Filing Declaration).
If a debtor has a change of mailing address, it is the debtor’s responsibility to promptly file a change of address form so that the clerk’s office, trustee, and creditors know where to mail documents for the debtor.
Click here for Change of Address form. The debtor should also mail a copy of the change of address form to all creditors.
|.3.||What Does the Bankruptcy Case Number Mean?||When a bankruptcy case is filed, the clerk’s office starts an electronic docket to record all activity in the case and assigns the bankruptcy case a unique case number (combination of letters and numbers). Sometimes the clerk’s office will use a longer sequence of numbers and letters, and sometimes the clerk’s office will use a shorter sequence. A debtor, trustee, and other parties should use only the shorter sequence.
a) Shortened Number of a Bankruptcy Case – A debtor, trustee, and other parties should use a shortened number when filing subsequent documents such as amended forms, motions, responses, adversary proceedings, proofs of claim, etc. The shortened number contains only the division, the year the bankruptcy case or adversary proceeding was filed, the five digit number of the bankruptcy case or adversary proceeding, and the two letters for the judge assigned to the case. When the court prepares orders after a judge makes a ruling, the shortened number will be found on the first page of the order. An example of a Shortened Number is 2:08-98751-VZ – This means that the bankruptcy case was filed in the Los Angeles Division in 2008 and was assigned to the Honorable Vincent Zurzolo.
b) Complete Number of a Bankruptcy Case – The Complete Number is inserted by the clerk’s office on the electronic docket, the Notice of Bankruptcy Case, and Notice of Electronic Filing (“NEF”) receipts that CM/ECF users receive when a document is filed on the electronic docket. A complete bankruptcy case number consists of the court division in which the case was filed, the year of filing, the type of case, five additional digits, and the initials of the judge assigned to the case. An example of a Complete Number is: 2:02-BK-12345-AA, which indicates that the case was filed in the Los Angeles Division in 2002, is a bankruptcy case (not an adversary proceeding), is number 12345 in that year’s sequence, and is assigned to the Honorable Alan Ahart.
|4.||What is the Location and Function of the Office of U.S. Trustee?||The Office of the U.S. Trustee (“UST”) is not part of the bankruptcy court but is an agency of the Department of Justice whose main role is to monitor the administration of bankruptcy cases, detect bankruptcy fraud, and appoint/supervise a group of trustees who can administer chapter 7, 11, or 13 bankruptcy cases. The Office of the U.S. Trustee is divided nationwide into 16 regions, and each region is comprised of lawyers, case analysts, and other staff who are supervised by one person whose title is “United States Trustee.” The U.S. Trustee generally has the right to be present at any court hearing and can make motions and recommendations to bankruptcy judges.
The U.S. Trustee for Region 16 has oversight of bankruptcy cases in the Central District of California. The main office for Region 16 is in Los Angeles, but offices are located near to or at the courthouses in all divisions.
Click here for a list of UST division offices. One of the first actions in a bankruptcy case is the 341(a) Meeting of Creditors, and this meeting will be held at one of these division offices. For information about a 341(a) Meeting of Creditors, see FAQ After Filing #9.
Click hereif you would like additional information regarding the trustee program in general or an individual trustee.
|5.||Does Every Bankruptcy Case Have a Trustee?||A trustee is automatically appointed in every Chapter 7 and Chapter 13 bankruptcy case.
A trustee is not automatically appointed in a Chapter 11 bankruptcy case. Instead, the debtor acts as the “Debtor-in-Possession” and has many of the duties and rights that a trustee has. Creditors that need information about a Debtor-in-Possession should contact either the responsible officer of the debtor or the attorneys for the debtor. A trustee may be appointed if a debtor requests that one be appointed or another party files a motion and the court determines that a trustee should be in charge of managing the debtor’s affairs.
|6.||What is the Role of a Trustee in a Bankruptcy Case?||Chapter 7 Bankruptcy Case – In a chapter 7 bankruptcy case, all of the debtor’s property belongs to the bankruptcy estate unless the court makes a ruling that certain property is no longer property of the estate, the trustee abandons property to the debtor, or the property is exempt under California law from collection by creditors. It is recommended to consult a bankruptcy attorney to determine what property is exempt. A trustee is appointed to take control of certain assets of the debtor, bring these assets into the estate, and sell or distribute these assets for the benefit of creditors. Some assets will remain with the debtor if these assets are determined to be exempt from distribution to creditors. A trustee can recover certain assets that were previously transferred and bring those assets into the bankruptcy estate. Neither a debtor nor any other person or business should use or transfer an asset that belongs to the bankruptcy estate unless there is an express court order or notice from the trustee.
Chapter 11 Bankruptcy Case – If a trustee is appointed in a chapter 11 bankruptcy case, a trustee will manage the affairs of the debtor and make all decisions about property of the estate. In that scenario the trustee will perform many of the same roles as a trustee in a chapter 7 case, except different deadlines and procedures apply. The trustee has the right to propose a plan of reorganization.
Chapter 13 Bankruptcy Case – In a chapter 13 bankruptcy case, all property remains property of the debtor unless the court orders otherwise. A trustee is appointed to collect payments, monitor activity in the case and to report to the court on how well a debtor is meeting its obligations. If a debtor is not meeting obligations, the trustee can ask the court to dismiss the bankruptcy case. If a debtor’s income rises, the trustee or a creditor can ask the court to increase amounts paid to creditors.
|7.||Do I Find Out Who is the Trustee in a Bankruptcy Case?||a) “Notice of Bankruptcy, 341(a) Meeting, Deadlines” – This notice is mailed by the clerk’s office promptly after a bankruptcy case is filed. The notice will contain the name, address, and telephone number of the trustee. For information about a 341(a) Meeting of Creditors, see FAQ After Filing #9.
b) Electronic Docket (CM/ECF PACER) – The trustee is identified on the left side of the electronic docket for each bankruptcy case. Click here for information on registering for a CM/ECF PACER account.
c) Mailing Lists at the End of Papers Filed With the Court – When a party files a motion or other documents with the court, the party is generally required to mail a copy to the trustee in the bankruptcy case. Therefore, the trustee’s name and address will be shown on this “Service List.”
d) U.S. Trustee Website – Contact information for all trustees who serve in the Central District of California can be found on the website for U.S. Trustee, Region 16. This website will not list a particular bankruptcy case, but it should contain a trustee’s phone number which can be used for contact information.
Click here to locate information about trustees.
|8.||How Does the Court Notify Creditors of a Bankruptcy Case?||Very soon after the bankruptcy petition is filed, the clerk’s office mails a notice to creditors that a debtor has filed for bankruptcy. This notice is titled “Notice of Chapter 7/11/13 Bankruptcy Case, Meeting of Creditors, Deadlines.” A debtor must list all of its creditors when filing the bankruptcy petition package so that each creditor is aware of the bankruptcy. The court only mails a notice to creditors that are listed; therefore, a debtor must insure that all creditors are listed. Generally, creditors are shown in two places in a petition package:
Click here for an example in a chapter 7 bankruptcy case.
Click here for an example in a chapter 13 bankruptcy case.
a) Schedules – Creditors should be found on the proper Schedules according to the type of debt.
Click here for a list of Schedules and descriptions of the types of debt for each Schedule.
b) Master Mailing List- Creditors should be found in alphabetical order on the Master Mailing Matrix with the correct street address, city, state, and zip code for each creditor.
|9.||What is a 341(a) Meeting of Creditors, and Who Must Attend the Meeting?||a) Purpose of 341(a) Meeting – Soon after a bankruptcy case is filed, a meeting is held so that creditors and the trustee can ask questions about the debtor’s financial situation. This meeting is required by Bankruptcy Code section 341(a) and the meeting is presided over by either the trustee assigned to the case and/or a representative of the U.S. Trustee’s Office.
b) Required Attendance – A debtor who is an individual must attend the 341(a) Meeting in person and may have an attorney present. If a debtor is a corporation or partnership, the debtor’s attorney and a responsible officer of the business must attend the meeting. If a debtor does not attend the 341(a) Meeting, the bankruptcy case may be dismissed.
c) Time, Location – The clerk’s office mails a notice of the date, time, and location of the 341(a) Meeting to the debtor and to all creditors whose mailing addresses were listed in the bankruptcy petition package. The notice is titled “Notice of Chapter 7/11/13 Bankruptcy Case, Meeting of Creditors, Deadlines.”
PLEASE PAY CLOSE ATTENTION TO THE ADDRESS OF THE LOCATION of the 341(a) Meeting, as the bankruptcy court address may be different from the address of the 341(a) Meeting location.
Click here for a list of UST Division offices.
|10.||What Do I Do if an Individual or Business Filed for Bankruptcy and Owes Me Money?||Creditors in bankruptcy cases have debts paid either by waiting for a distribution from the estate (unsecured creditors), by reclaiming property from the bankruptcy estate (secured creditors), or by obtaining a judgment that the debt is not dischargeable. The timing and procedure depend upon the chapter of the bankruptcy case. Requests for information regarding payment on a claim should be directed to the trustee assigned to the case.
a) Secured Creditors and Motions for Relief From the Automatic Stay – Creditors whose debts are secured by real or personal property can try to reclaim the property from the bankruptcy estate. In most situations this requires the filing of a Motion for Relief from the Automatic Stay. For information about relief from the automatic stay, see FAQ After Filing #12. The court has its own mandatory form motions regarding relief from the automatic stay, and these are titled “F 4001-1M” forms. The forms differ depending upon what type of property the credit desires to reclaim. There are many procedural rules to follow, and the secured creditor must prove to the court that it is entitled to reclaim the property. It is highly recommended to consult a bankruptcy attorney to determine if the property can be reclaimed or if a Motion for Relief from the Automatic Stay is necessary.
Click here to download mandatory court form motions.
b) Creditors Involved in Lawsuits in Other Courts – Creditors who are involved in lawsuits with the debtor in other courts need permission to continue the lawsuit. In most situations this requires the filing of a Motion for Relief from the Automatic Stay. For information about relief from the automatic stay, see FAQ After Filing #12. There are many procedural rules to follow, and the creditor must prove to the court that it is entitled to proceed with the lawsuit in another court. It is highly recommended to consult a bankruptcy attorney.
Click here to download form motion F 4001-1M.NA for free from the court’s website.
c) Unsecured Creditors and Adversary Proceedings to Determine Debts Non-dischargeable – Regardless of what chapter bankruptcy is filed and whether or not a debtor lists a creditor on the Schedules, a creditor can file an Adversary Proceeding to determine that a debt is not dischargeable. In an adversary proceeding, a creditor is required to prove to the court that the debt is non-dischargeable. There are many procedures and deadlines, and it is highly recommended that the creditor consult a bankruptcy attorney. For information about adversary proceedings, see FAQ After Filing #18.
d) Creditors Waiting for a Distribution from the Bankruptcy Estate – To get paid from a bankruptcy estate, it may be necessary to file a document titled “Proof of Claim.”
(1) Obtaining a Proof of Claim Form
Click here to download a Proof of Claim form.
For the location of clerk’s offices where a Proof of Claim can be obtained in person, see FAQ General Information #1.
In chapter 7 cases a Proof of Claim form may be included with the Notice of Chapter 7 Bankruptcy.
(2) Filing a Proof of Claim – When filing a Proof of Claim, be sure to attach photocopies of supporting
documents to the original Proof of Claim form (NOTE: Do not send the “original” copies of the supporting documentation). A creditor may also send to the clerk’s office a letter with the creditor’s name and address, the debtor’s name and bankruptcy case number, the amount owed to the creditor, the type of claim (secured, unsecured, priority), the date the debt was incurred, and any documentation that supports the claim. A creditor may need to file a Proof of Claim with the court within 90 days of the first date set for the 341(a) Meeting of Creditors, and possibly even earlier. To be aware of the applicable deadline, refer to Federal Rules of Bankruptcy Procedure Rule 3002(c) and check for relevant court orders in the bankruptcy docket for the debtor who owes the money. An original and one copy of the Proof of Claim are required. If a creditor wishes to receive a conformed copy of the Proof of Claim, please enclose one extra copy of the Proof of Claim and a self-addressed, stamped envelope.
(3) Deciding if a Creditor Needs to File a Proof of Claim — Please consult the categories below to
determine if you need to file a Proof of Claim or are allowed to file a Proof of Claim.
Creditors Which are Listed on Debtor’s Schedules
* Chapter 7 Bankruptcy Cases – For Chapter 7 cases, if a creditor is listed in the Schedules and it
appears that there will be a distribution for creditors, the clerk’s office will send a Proof of Claim at
the beginning of the bankruptcy case along with the Notice of Chapter 7 Bankruptcy, Meeting of
Creditors, Deadlines. However, for many chapter 7 bankruptcy cases a distribution is not likely,
and the same Notice of Chapter 7 Bankruptcy will specifically state that creditors should not file
a Proof of Claim unless the court sends a follow-up notice.
* Chapter 11 Bankruptcy Cases – For chapter 11 cases, it is not necessary to wait to receive the
Notice of Chapter 11 Bankruptcy, Meeting of Creditors, Deadlines before a creditor files a
Proof of Claim. A notice that identifies a deadline for filing Proofs of Claims will be sent to all
* Chapter 13 Bankruptcy Cases – For chapter 13 cases, it is not necessary to wait to receive the
Notice of Chapter 13 Bankruptcy, Meeting of Creditors, Deadlines before a creditor may
file a Proof of Claim. In fact, creditors must file a Proof of Claim. Chapter 13 bankruptcy cases
move quickly, and generally within the first two to three months, the court will conduct a Chapter
13 Plan confirmation hearing.
Creditors Which are Not Listed on Debtor’s Schedules – Sometimes a debtor does not list all of its creditors. If a creditor is not listed on the debtor’s Schedules, the creditor can file a Proof of Claim to notify the court and other parties the amount of money that it is owed.
Creditors Which Dispute the Claim Listed in Debtor’s Schedules – If a creditor disputes the amount of its claim that is listed in the debtor’s Schedules, the creditor must timely file a Proof of Claim to notify the court and other parties the amount of money that it is owed.
NOTE: Filing a Proof of Claim may limit a creditor’s right to a jury trial if the creditor is sued by a
trustee or a chapter 11 Debtor-in-Possession. It is important to consult a bankruptcy attorney.
|11.||I am a Landlord and My Tenant/Lessee Filed For Bankruptcy. What Happens Now?||The filing of a bankruptcy petition will generally stop (i.e., automatically stay) most actions (such as eviction proceedings or other actions for possession or damages) by a landlord against a tenant for the duration of the bankruptcy case. For more information on the Automatic Stay, see FAQ Before Filing #9. However, this also depends upon whether the lease was for residential property, commercial property, or personal property. For residential property it also depends upon whether or not an unlawful detainer proceeding was commenced or completed in Superior Court before the bankruptcy case was filed.
A landlord may file a Motion for Relief from the Automatic Stay to reclaim the premises. If the motion is granted by the bankruptcy judge, the Automatic Stay will either be lifted or altered, thereby allowing the landlord to continue with a proceeding or action against the tenant, but only limited to recovery of possession of the premises. For more information on Motions for Relief from the Automatic Stay, see FAQ After Filing #12.
As this is a complex areawhich has been affected by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, it is recommended that legal advice be obtained from a bankruptcy attorney.
|12.||How do Creditors File for Relief from the Automatic Stay?||a) General Rule – In many situations a creditor must obtain a court order granting relief from the Automatic Stay to have the right to take action against a debtor or property of the estate. This is true regardless of what type of action a creditor has already filed against the debtor in another court, or if the creditor has started (but not completed) taking action to repossess property of the debtor. If a creditor does not obtain a court order, that creditor could be sanctioned (i.e., fined), and any action taken by that creditor may be void.
b) Filing a Motion and Setting a Hearing Date — A Motion for Relief from the Automatic Stay is commenced by filing the appropriate motion and setting the motion for a hearing date. For information on Motions , see FAQ After Filing #15. To file a Motion for Relief from the Automatic Stay, the Local Bankruptcy Rules require parties to use mandatory forms. Click here for a list of F 4001-1M form motions. There are several different types of mandatory form motions. A creditor will pick the appropriate mandatory form motion based upon what the creditor is asking the court for permission to do (i.e., proceed against real property, proceed against personal property, continue with an unlawful detainer lawsuit in Superior Court, proceed with a state court lawsuit, etc.). Each motion must demonstrate “cause” for lifting the Automatic Stay, and shall be supported by admissible evidence. For example, if a creditor asserts a secured claim, the motion must contain admissible documents that assert a valid security interest and all documents that support an assertion of lack of adequate protection or a lack of equity in the relevant property.
For information on setting a hearing date on regular notice, see FAQ After Filing #25.
For information on setting a hearing on shortened notice, see FAQ After Filing #26.
c) Filing Fee and Number of Copies – A Motion for Relief from the Automatic Stay requires a filing fee. Click here for a fee schedule. If the motion is filed in person at the intake window of the clerk’s office, a creditor must file one copy with the court (original and one extra copy). If a creditor also wants to leave with a “Filed” stamped copy of the motion, the creditor must bring a second copy. For all motions filed electronically via CM/ECF, the creditor must promptly deliver one copy of the motion to the judge’s chambers by mail or personal delivery. Click here for information.
d) Serving the Motion and Notice of Motion- Remember to serve all parties required to be served by the Local Bankruptcy Rules and to complete the service within the time period required by those rules. Consult the CM/ECF Administrative Procedures regarding electronic notice and service.
|13.||What do Debtors File to Have the Stay Imposed or Continued?||In some situations the Automatic Stay does not protect a debtor from all creditors, or it only applies for 30 days after the bankruptcy case is filed. In these situations a debtor must file a Motion in Individual Case for Order Imposing a Stay or Continuing the Automatic Stay if a debtor wants the Automatic Stay to protect the debtor. A fee is required to file this motion. As this type of motion must be heard by the judge quickly after a bankruptcy case is filed, it is highly recommended to consult a bankruptcy attorney before a bankruptcy case is filed.
Click here for court approved form motion F 4001-1M.IS
Click herefor a fee schedule
|14.||Whom do I notify about Possible Fraudulent Activity in a Bankruptcy Case?||a) Contact the Office of the United States Trustee – The Office of the U.S. Trustee is the place to start when reporting possible fraudulent activity in a bankruptcy case. Fraudulent activity may have been committed by a debtor, an insider of a debtor, a creditor, a trustee, an attorney or other professional, or a bankruptcy petition preparer. Fraudulent activity may include hiding assets, fraudulently transferring property, lying under oath, knowingly filing false affidavits or declarations, knowingly filing false proofs of claim, or knowingly providing false information.
b) What to Include in the Letter – To expedite the handling of complaints of violations in the bankruptcy system, the U.S. Trustee requires that the complaint be submitted in a signed letter with the following information:
a) Your return address and telephone number;
b) The bankruptcy case name and file number;
c) Copies of any pertinent court filings;
d) A chronological summary of the allegedly fraudulent activity;
e) A statement as to why you believe that fraud has occurred;
f) Location of property alleged to be involved; and
g) Names, addresses, and telephone numbers (to the extent available) of the witnesses known to you.
c) Mail the letter to:
Office of the United States Trustee
Special Investigations Unit
725 South Figueroa, 26th Floor
Los Angeles, CA 90017
d) U.S. Trustee Review and Response- If the information furnished establishes a reasonable belief that a criminal violation has occurred, the matter may be referred to the United States Attorney. If the United States Attorney deems the matter to hold prosecutorial merit, it will be referred to the appropriate law enforcement agency for investigation. Occasionally a debtor or trustee is sentenced to prison for fraudulent activity. Sometimes the activity does not rise to the level of criminal activity but provides justification for the court to order the return of property to the bankruptcy estate, the denial of a discharge of debts for the debtor, or the removal of a trustee. In any event, dishonest activity is taken very seriously by the bankruptcy court and Office of the U.S. Trustee.
|15.||What is a Motion and Notice of Motion, and Must a Response be Filed?||A motion is a written request made to the court, asking the judge to issue an order. The motion must be supported by evidence. The motion must include a separate “Notice of Motion” which includes a brief summary of the nature of the motion, the deadline for filing a response, and if there is a hearing, the date, time, and location of the hearing. The Notice of Motion and the Motion must be served upon all parties required by the Local Bankruptcy Rules and Federal Rules of Bankruptcy Procedure. “Serving” the Notice of Motion and Motion is an important part of due process, and failure to timely serve interested parties can result in a denial of or delay in ruling on the motion or a denial of the motion. Consult the CM/ECF Administrative Procedures to determine if a person may be served electronically instead of by mail.
Click here for a form “Notice of Motion” F 9013-1.1
Other parties have the chance to file and serve a written response to the motion. There is a specific deadline for filing and serving a written response, usually fourteen (14) days prior to a hearing. The response may agree with or oppose the action requested. If the response opposes the action requested, it must contain the reasons for opposing the motion and must include supporting evidence.
The Court will enter an order in which the judge either grants or denies the motion.
See Local Bankruptcy Rule 9013-1for rules and deadlines for filing and serving most motions. There may also be other Federal Rules of Bankruptcy Procedure and Local Bankruptcy Rules that apply.
|16.||Do all Motions Require a Court Hearing?||Some motions require a hearing while other motions do not, and procedures are different. To determine if a hearing is required for a particular motion, a party filing the motion should consult:
a) The section(s) of the Bankruptcy Code that set the standard for granting the motion;
b) The Rules in the Federal Rules of Bankruptcy Procedure that establish procedures for notice of the motion, service of the motion, and court ruling on the motion;
c) Local Bankruptcy Rule 9013-1 for a list of motions that the court has already determined a hearing is not required;
d) Other Local Bankruptcy Rules that apply to the particular type of motion (NOTE – Some motions are called “Applications”); and
e) A bankruptcy attorney.
For information on setting a hearing date on regular notice, see FAQ After Filing #25.
For information on setting a hearing on shortened notice, see FAQ After Filing #26.
Click here for form “Notice of Motion” F 9013-1.1
|17.||What Happens if a Motion Does Not Require a Hearing?||Once it is determined that a hearing is not required, a party must provide notice of the motion and properly serve the motion before obtaining a ruling from the judge. The motion will have to clearly and plainly state that there will not be a hearing unless a party files and serves a written response and specifically requests a hearing. To provide notice of the motion and serve the motion, do all of the following:
a) Follow the procedure for providing notice of the motion and serving the motion – In particular see Local Bankruptcy Rule 9013-1;
b) Clearly state in the Notice of Motion the procedure for objecting to the motion and requesting a hearing;
c) Wait the proper response period;
d) Follow the procedure for notifying the court as to if any objections were received and if a hearing was requested.
(1) If an objection was filed and a hearing was requested, the moving party must timely set the matter for a
hearing, or the motion may be denied; and
(1) If an objection was not filed within the response deadline, file a declaration of service and non-
Response, and lodge an order.
Click herefor a form declaration of service/non-response
|18.||What is the Difference Between a Bankruptcy Case and an Adversary Proceeding?||An Adversary Proceeding is Different From the Main Bankruptcy Case – The main bankruptcy case involves a debtor and the creditors of that debtor, and the main bankruptcy case has its own separate electronic docket and case number. For information on main case numbers, see FAQ After Filing #3. An “Adversary Proceeding” in bankruptcy court has the same meaning as a lawsuit in other courts. This means that one or more “plaintiff(s)” file a “complaint” against one or more “defendant(s).” In many situations an adversary proceeding is required if a plaintiff wants to obtain a particular type of relief. Consult Federal Rules of Bankruptcy Procedure Rule 7001 to determine if a particular type of relief requires an adversary proceeding.
When an adversary proceeding is commenced, the clerk’s office starts a separate electronic docket to record all activity in the adversary proceeding. Each adversary proceeding has its own “adversary number” which can be found on the first page of the complaint, right below the main bankruptcy case number. An example is 2:AP:05-01501-VZ. This means an adversary proceeding (AP) filed in the Los Angeles division in calendar year 2005 and assigned to the Judge Vincent Zurzolo. After an adversary complaint is filed, the defendant has a specific deadline to file and serve a written response to the complaint, and then a series of pre-trial hearings/conferences take place until the lawsuit is settled, dismissed, or goes to trial.
|19.||What if a Lawsuit was Filed Before the Bankruptcy Case Was Filed?||A Debtor and a Creditor are Often Involved in Lawsuits before a Bankruptcy Case is Filed – Generally, a lawsuit commenced before the bankruptcy case was filed must stop unless the bankruptcy judge gives permission for it to continue. In other situations the lawsuit is replaced by a creditor filing a “proof of claim” in the bankruptcy case, or the lawsuit may be removed from the non-bankruptcy court to the bankruptcy court. If a debtor is a plaintiff in a lawsuit, the trustee and court must immediately be notified to determine if that lawsuit can continue or must be brought into the bankruptcy court. In chapter 7 and 11 bankruptcy cases in which a trustee is appointed, the trustee generally becomes the new plaintiff if the debtor was the plaintiff at the time the bankruptcy case was filed.|
|20.||Can Lawsuits be Filed After the Bankruptcy Case is Filed?||a) Adversary Proceedings Can be Filed After Bankruptcy Case is Filed – Adversary proceedings can be filed in bankruptcy court for a variety of reasons, such as:
(1) A creditor wants to prevent the debtor from receiving a discharge;
(2) The trustee attempts to force a non-debtor party to give back property that belongs to the bankruptcy estate; or
(3) A party wants the court to make rulings about property or contractual rights (Declaratory Relief).
In some scenarios an adversary proceeding is the only procedural method for obtaining relief. Consult Federal Rules of Bankruptcy Procedure Rule 7001 to determine if an Adversary Proceeding is required. In some situations an adversary proceeding can be started or continued even if the main bankruptcy case is no longer open.
b) Filing the Complaint – A plaintiff must take six steps to properly file an adversary complaint:
(1) Include an adversary proceeding cover sheet. Click here to download Form B-104;
(2) Pay the adversary filing fee. Click here for the amount of the fee;
(3) Provide one extra copy to the court of the complaint and cover sheet, even if the complaint is filed electronically via CM/ECF;
(4) Include a “Summons” form that the clerk’s office can fill out and return to the plaintiff. The summons will indicate the adversary number and the date/time/location of the initial adversary status conference. Click here to download a blank “Summons and Notice of Status Conference” form;
(5) Serve a Summons on each defendant according to the methods and time limits set forth in the Federal Rules of Bankruptcy Procedure 7000 series and Local Bankruptcy Rules; and
(6) File a Proof of Service of Summons and Complaint after a defendant has been properly served.
|21.||Are There Special Deadlines and Procedures for Adversary Proceedings?||Deadlines – Prosecuting or defending an adversary proceeding is complicated, and there are many important deadlines for filing a complaint, serving a Summons, responding to the complaint, completing discovery, filing pre-trial motions, and other activities in the lawsuit. These rules are found in the Federal Rules of Bankruptcy Procedure 7000 series and Local Bankruptcy Rules. It is highly recommended that a party hire a bankruptcy attorney, and even when an attorney is involved, the actual party (plaintiff/defendant/other) should pay close attention to all activities in the lawsuit so that there is adequate time to prepare for deadlines and court dates (status conferences, hearings on motions, pre-trial conferences, trial). Complaints to determine dischargeability of debts and to deny a discharge must be filed very soon after the bankruptcy case is filed, and the deadline for filing such complaints is specified in the Notice of Chapter 7/11/13 Bankruptcy, Meeting of Creditors, Deadlines that the clerk’s office mails to creditors right after a bankruptcy case is filed.
Special Procedures of Judges – Individual judges have special procedures related to adversary proceedings. These procedures may include the format for preparing and filing status conference reports and pre-trial stipulations, trial procedures, and treatment of witnesses and other evidence. Click here to consult “Judges Procedures” for each judge in the Central District of California.
|22.||What if My Attorney is Not a Bankruptcy Attorney?||An Attorney Who does Not Regularly Practice Bankruptcy law is often involved in a bankruptcy adversary proceeding because the attorney was involved in a lawsuit filed pre-petition or the attorney represented a creditor or had an existing relationship with another party in the past. This can present a significant learning curve for an attorney; however, the court expects that all attorneys appearing in adversary proceedings be informed of court procedures, statutes and rules. Inexperience with bankruptcy law is not a valid excuse for filing documents late or requesting a continuance of a court proceeding due to lack of preparation. An attorney should set aside time to become informed, to timely communicate with opposing attorneys, to file documents on time, and to prepare for court proceedings. If necessary, consult with a bankruptcy attorney or hire a bankruptcy attorney as co-counsel.|
|23.||What if My Attorney is not Licensed in California?||An Attorney Who is Not Licensed in California can still represent a creditor in this court by obtaining court approval to appear pro hac vice. For information on appearing pro hac vice, see FAQ General Information #13. It may be difficult for the attorney to provide legal services due to travel and because in certain scenarios telephonic appearances at court hearings are not allowed. A local attorney must also be designated as co-counsel. All attorneys should read the Local Bankruptcy Rules, especially LBR 2090-1.|
|24.||What if My Attorney is Not Admitted to Practice in the Central District of California?||An Attorney Who is Not Admitted to Practice in the Central District of California can still represent a creditor in court by following the procedure to become admitted to the district court for the Central District of California. For more information, see FAQ General Information #12 and #13. All attorneys should read and shall be familiar with the Local Bankruptcy Rules on appearing in adversary proceedings, especially LBR 2090-1.|
|25.||How Do I Obtain a Hearing Date on My Motion and Provide Notice of the Hearing?||For information on determining if a motion requires a hearing, see FAQ After Filing #16. Once it is determined that a hearing is required, the moving party must set the matter for hearing and provide adequate notice of the hearing. To set a hearing and provide notice of the hearing, do all of the following:
a) Identify how much notice is required before the hearing can take place;
b) Click here to look at self-calendaring procedures for the judge who will hear the motion;
c) Put the hearing date, time, courtroom, and courthouse address on the first page of the motion (See Local Bankruptcy Rule 1002-1 for information on Motion captions);
d) Prepare a written Notice of Motion in which the date of the hearing and the deadline for filing a response are clearly stated, or Click here for a form “Notice of Motion” F 9013-1.1;
e) Serve the Notice of Motion of the hearing on all parties required by the Local Bankruptcy Rules and Federal Rules of Bankruptcy Procedure; and
f) Do not lodge an order before the hearing unless the court or Local Bankruptcy Rule specifically allows or requires that an order be lodged before the hearing, or the order is allowed to be electronically lodged via the LOU program. See Local Bankruptcy Rule 9021-1 for rules on lodging orders. Click hereto access the LOU Procedures.
|26.||Do How Can I Have a Motion Heard on Shortened Time (Ex Parte)?||Generally the Local Bankruptcy Rules require a hearing to be set on at least 21 days notice. Hearing dates on motions may be set sooner than 21 days if the moving party can establish a reason for the request. Refer to the Local Bankruptcy Rules, in particular Rule 9075-1. Three separate documents must be submitted to the court simultaneously.
a) The first document to file is the “Application” to have a motion heard on shortened time (i.e., an Ex Parte Application) which must explain the reasons and must contain admissible evidence to support the need to have a motion heard on less than 21 days notice. File the Application and on the same day deliver one copy directly to the judge’s chambers.
b) The second document to file is the “Motion” that the party wants the judge to hear on shortened time. The motion must identify the ruling sought, and the motion must contain the legal grounds and admissible evidence for granting the motion. File the motion and on the same day deliver one copy, along with the Application, directly to the judge’s chambers.
c) The third document is a “Proposed Order” that the judge can sign to grant or deny the Application to have the motion heard on shortened time. Lodge the proposed order with the court and on the same day deliver one copy directly to the judge’s chambers. If the order is not lodged electronically, the original and copies will be delivered to the clerk’s office intake window. Click here for a blank “Order Shortening Time, ” F 9075-1.
Click here to find out if the judge has additional procedures for setting hearings on Ex Parte Applications. If the judge grants the Application, the court will contact you with a hearing date and instructions for providing notice of the hearing and for serving the motion.
|27.||Do Judges Allow Telephonic Appearances or Make Tentative Rulings?||Telephonic Appearances – Many judges allow attorneys who have filed a motion, response or other document related to a hearing, to appear by telephone. The procedures to follow are found in the “Judges” section of this website. However, there are many situations in which an appearance in court is required. Click here for “Judges’ Procedures” to find out the method for requesting a telephonic appearance and to find out how to make the appearance.
Tentative Rulings – Many judges post tentative rulings in advance of a hearing or conference. Judges vary on how far in advance these tentative rulings are posted and what information is provided in the tentative ruling. For information on tentative rulings, see FAQ General Information #16.
Click here for a link to tentative rulings.
|28.||What if I am Late for a Hearing?||An attorney or party must immediately contact the judge’s chambers and the opposing party as soon as they realize that they will be late for a hearing. For information about asking for 2nd call at a hearing, see FAQ General Information #15.|
|29.||What is an Order or Judgment?||An “Order” is a separate document that a judge signs which sets forth the judge’s ruling on a motion. A “Judgment” is a separate document that a judge signs and sets forth the judge’s ruling at the end of an adversary proceeding. The order or judgment may be prepared by the court, be lodged by the moving party, or be lodged by a responding party. After the judge signs an Order or Judgment, it is entered on the court docket and served on required parties. The Order or Judgment begins a timeline for filing appeals or filing motions to change the ruling. In some situations the court will enter an Order or Judgment and also enter a document titled “Findings of Fact and Conclusions of Law.” But usually an Order or Judgment is very short and simply states that legal conclusions and factual findings were made on the record at the hearing.
An Order or Judgment must be prepared separately from other documents, i.e. it shall not be a part of a motion, response, application, stipulation, etc.
* See Local Bankruptcy Rule 9021-1 for the format of preparing and lodging a proposed Order or
* Click here to access the LOU Procedures for preparing and electronically
lodging proposed Orders or Judgments.
* Only CM/ECF-registered users are able to lodge an order electronically via LOU. Click here for a Quick Reference Guide.
* See Federal Rule of Bankruptcy Procedure 9022 and applicable Local Bankruptcy Rules to identify
to whom the court must deliver an entered order.
If the Order or Judgment relates to a court hearing, a record may be obtained of the oral arguments and court findings and conclusions made at the hearing.
Click here for information about obtaining an Audio CD Recording for a fee.
Click here for information on obtaining a Transcript for a fee.
|30.||What if I Disagree With the Judge’s Legal or Factual Conclusions?||If a party disagrees with a judge’s legal or factual conclusions from a proceeding, and the judge has entered an order or judgment that reflects the judge’s ruling, the party who disagrees generally has four alternatives:
a) Motion to Vacate an Order or Judgment – When a party files a motion to vacate an order or judgment, the party identifies a specific order or judgment that is disagreed with and specifically discusses what the party thinks is incorrect with the judge’s legal or factual conclusions. A motion to vacate an order or judgment is granted under limited circumstances. Refer to Federal Rules of Bankruptcy Procedure Rule 9024 and Local Bankruptcy Rule 9013-4.
b) Motion to Amend an Order or Judgment – A motion to amend an order or judgment is similar to a motion to vacate an order or judgment, and generally the same standards apply. However, a motion to amend an order or judgment is usually based on changed circumstances. Refer to Federal Rules of Bankruptcy Procedure Rule 9023 and Local Bankruptcy Rule 9013-4.
c) Appeal to the District Court or Bankruptcy Appellate Panel – If a party wishes to file an appeal to the District Court or the Bankruptcy Appellate Panel, a Notice of Appeal must be filed within 14 days of the entry of the Order or Judgment on the docket. Click here for a Notice of Appeal form. If, for whatever reason, a party fails to file a Notice of Appeal within 14 days, the party must file a motion for permission to file a Notice of Appeal. A party may not file a Notice of Appeal later than thirty (30) days after entry of the Order or Judgment.
When an Appeal is filed, the matter is automatically referred to the Ninth Circuit Bankruptcy Appellate Panel (“BAP”) unless the appellant files a separate Statement of Election to transfer the appeal to the U.S. District Court concurrently with the Notice of Appeal. Within a short period of time the appellee also has the opportunity to transfer the appeal to the U.S. District Court. When an appeal is directed to the BAP, an original and three (3) copies of the Notice of Appeal need to be filed, plus copies for the interested parties with self-addressed, stamped envelopes. When an appeal is directed to the District Court, an original and one (1) copy must be filed. Click here to determine the cost for filing a Notice of Appeal).
d) Request that Matter be Directly Appealed to the Ninth Circuit Court of Appeals – If a party wishes to have the matter directly appealed to the Ninth Circuit Court of Appeals, the party must file a motion with the bankruptcy judge.
Appeals are very complex and are governed by many technical rules. Refer to the 8000 series of rules from the Federal Rules of Bankruptcy Procedure and Local Bankruptcy Rules.
|31.||What if the Order Misstates the Judge’s Legal or Factual Conclusions or Ruling?||Opposing Party can File and Serve a Written Objection to the Form of an Order - After the judge makes a ruling on a motion or complaint, the court may prepare its own order or judgment, or the court may have one of the parties submit a proposed form of order or judgment. If the motion or complaint was opposed or otherwise contested by another party, and the proposed form of order or judgment was lodged by one of the parties, the other party ordinarily has seven (7) days to review the proposed order or judgment. If the opposing party thinks that the wording of the proposed order or judgment does not accurately reflect the judge’s legal and factual conclusions or some other part of the ruling, that party must immediately file and serve an objection to the form of the order and can submit a proposed new form of order. The party who intends to file the objection should notify the judge’s staff and make sure that the judge receives a copy of the objection within the seven (7) day deadline. If the deadline is not met, the judge may enter the proposed form of order without reviewing the objection. Refer to Local Bankruptcy Rule 9021-1.
All Parties can Stipulate to a New Proposed Form of Order - The parties may also stipulate to a new proposed form of order and submit the stipulated order to the court within the seven (7) day deadline.
File a Motion to Amend the Entered Order or Judgment – If a party thinks that the entered order misstates the factual findings or legal conclusions made on the record at the hearing, the party can file a motion to amend the language of the order or judgment. Refer to Local Bankruptcy Rule 9021-1.
|32.||How do I Find out Which Debts Were Discharged?||The discharge order sent by the clerk’s office will contain a general statement about the categories of debts that are discharged. The individual debts that are discharged will not be listed on the discharge order. Instead, the discharge order will provide that debts are discharged UNLESS there has been a separate order denying a discharge of a specific debt. If there are no such orders, the debtor can assume that it received a discharge of all debts which fall into the categories indicated in the discharge order. See Bankruptcy Code Sections 523, 727(b), 1141 and 1328(a) and consult a bankruptcy attorney for more information on categories of debts that qualify for a discharge in chapter 7 or chapter 13 bankruptcy cases.
Click here for a sample discharge order in a chapter 7 bankruptcy case.
Click here for a sample discharge order in a chapter 13 bankruptcy case.
|33.||When is the Discharge Entered?||a) In chapter 7 bankruptcy cases, the entry date of a discharge on the case docket depends upon whether a trustee or creditor objects to the debtor receiving a discharge. For information about non-dischargeability issues and proceedings, consult Bankruptcy Code Section 727 and Federal Rules of Bankruptcy Procedure Rule 4004.
(1) The earliest date that a discharge will be entered on the case docket is shortly after the sixtieth (60th) day following the first date set for the 341(a) Meeting of Creditors. Under Federal Rules of Bankruptcy Procedure Rule 4004, a trustee or creditors have sixty (60) days after the first date set for the 341(a) Meeting of Creditors to file a complaint objecting to discharge. This sixty (60) day period ensures that a trustee and creditors have sufficient time to conduct investigations, and the court may extend the deadline if an appropriate motion to extend the filing deadline is filed before the sixty (60) day period expires.
(2) The later date that a discharge will be entered is after other actions are taken, such as:
* A trustee or creditor can delay the entry of a discharge order by filing a complaint (adversary proceeding) objecting to the discharge within the sixty (60) day period mentioned above or by getting the court to extend the sixty (60) day deadline;
* A creditor or debtor can delay by filing a reaffirmation agreement;
* An individual debtor will cause a delay by not filing Certification of Completion of Instructional Course
Concerning Personal Financial Management (Form 23). For requirements for filing proof of completion of the Certification of Completion of Instructional Course Concerning Personal Financial Management, see FAQ Before Filing #16; and
* The U.S. Trustee filed a motion to dismiss the bankruptcy case under Bankruptcy Code Section 707(b), and the motion is still pending.
(3) A discharge will not be entered in a chapter 7 case if:
* A debtor is not an individual (i.e. the debtor is a business);
* A trustee or creditor filed a complaint objecting to the discharge and the court determined that a discharge should not be allowed;
* A debtor has filed a waiver of discharge under Bankruptcy Code Section 727(a)(10);
* A debtor has not filed Form 23, Certificate of Completion of Instructional Course Concerning Personal Financial Management. For requirements for filing the Certification of Completion of Instructional Course Concerning Personal Financial Management, see FAQ Before Filing #16; and
* The debtor has received a bankruptcy discharge previously in the last six (6) to eight (8) years. It is
highly recommended to consult with a bankruptcy attorney and to review Bankruptcy Code Sections 727(a)(8) and 727(a)(9). For information about discharge and prior bankruptcy cases, see FAQ Before Filing #5.
Click here for Official Form 23.
b) In Chapter 11 cases, if the debtor is an individual, a discharge may be entered once the debtor has completed making payments under the Chapter 11 plan. If the debtor is not an individual, the debtor must be entitled to a discharge, and if so, a discharge order may be entered once the Chapter 11 Plan is confirmed. For more information, see Bankruptcy Code Section 1141 and consult a bankruptcy attorney.
c) In Chapter 13 cases, a discharge is usually entered once the debtor has completed making payments to creditors in accordance with the terms of the debtor’s Chapter 13 Plan and the debtor has filed the Certification of Completion of Instructional Course Concerning Personal Financial Management (Form 23). For requirements for filing the Certification of Completion of Instructional Course Concerning Personal Financial Management, see FAQ Before Filing #16. Also see Bankruptcy Code Section 1328. In limited circumstances a debtor may be granted a discharge despite not complying with discharge rules. This is called a “hardship discharge.” See section 1328(b) of the Bankruptcy Code. An attorney should be consulted to determine if this exception applies.
Click here for Official Form 23.
|34.||How do I get a Copy of the Discharge?||Copy Sent By Clerk’s Office: The clerk’s office will mail a copy of the discharge to the debtor, the case trustee, and all creditors. The discharge will be mailed to the addresses shown in the debtor’s list of creditors or in the schedules, whichever is filed later.
Request a Copy Later – Copies of a discharge may be obtained using the same process used to obtain copies of any other document filed in a bankruptcy case. For information about obtaining copies of documents, see FAQ General Information #6-9.
|35.||How does a Reaffirmation Agreement Affect Discharge?||A valid Reaffirmation Agreement prevents a particular debt from being discharged. A Reaffirmation Agreement must be approved by the debtor’s attorney or by the court, and the rules are complex. It is highly recommended to consult an experienced bankruptcy attorney.
Click here for Reaffirmation Agreement
Click here for Reaffirmation Agreement Cover Sheet
|36.||What is the Difference Between Dismissal, Conversion & Closing of a Bankruptcy Case?||a) Dismissal vs. Closing of a Bankruptcy Case — The main differences between dismissal and closing of a bankruptcy case involve discharge, ability to file another bankruptcy case, and the consequences of filing another bankruptcy case.
(1) Dismissal of a Bankruptcy Case – Dismissal ordinarily means that the court stopped all proceedings in the main bankruptcy case AND in all adversary proceedings, and a discharge order was not entered. Dismissal can occur because a debtor requested the dismissal and qualifies for voluntary dismissal. For information on requests by a debtor to voluntarily dismiss its bankruptcy case, see FAQ After Filing #37. Dismissal can also occur without a debtor’s consent if the court orders dismissal on its own, or a trustee or a creditor files a motion to dismiss the bankruptcy case and the court grants the motion. For information on dismissal without the debtor’s consent, see FAQ After Filing #38.
(2) Closing of a Bankruptcy Case – Closing means that all activity in the main bankruptcy case is completed. This means that all motions have already been ruled upon, and if a trustee was appointed, the trustee has filed a statement that all trustee duties have been completed.
Closing does not mean that a discharge was entered unless all activities related to determining discharge have been completed. For information on when a discharge order will be entered, see FAQ After Filing #34. If a bankruptcy case is closed without a discharge because an individual debtor did not timely file a Certificate of Completion of Instructional Course Concerning Personal Financial Management, a debtor must file a Motion to Reopen the Case. For information on reopening a case to file the Certificate and have a discharge order entered, see FAQ After Filing #41.
Closing does not necessarily mean that all adversary proceedings are finished. For information about adversary proceedings, see FAQ After Filing #18-21.
b) Conversion to Another Bankruptcy Chapter – Conversion means that the court has approved changing a bankruptcy case from one chapter to another chapter. Conversion may be requested by a debtor, by a trustee or creditor, or be independently ordered by the court. Sometimes conversion is automatically approved, and in other situations it is disallowed or requires a court hearing to approve a motion to convert. In some ways, conversion starts the bankruptcy case over because there are different rights and duties for the debtor and creditors. In other ways, conversion continues activities that are already taking place. It is highly recommended to consult a bankruptcy attorney to discuss a debtor’s right to convert to another chapter and the impact of conversion.
|37.||Can the Debtor Voluntarily Dismiss or Convert a Bankruptcy Case?||a) Voluntary Dismissal – A debtor can file a motion to voluntarily dismiss the bankruptcy case, but the court may or may not approve the dismissal depending upon the chapter number of the bankruptcy case and the prior history of the debtor in bankruptcy. IMPORTANT NOTE: Dismissal of a bankruptcy case has serious consequences. For example, if a bankruptcy case is voluntarily dismissed, it may affect a debtor’s rights to the Automatic Stay in a future bankruptcy case. It is highly recommended to consult a bankruptcy attorney.
Chapter 7 – See Bankruptcy Code Section 707 – Because a trustee is appointed, the trustee may file an objection to a request for voluntary dismissal, and a hearing is required.
Chapter 11 – See Bankruptcy Code Section 1112 – A debtor’s request to dismiss requires a motion and an opportunity for a hearing.
Chapter 13 – See Bankruptcy Code Section 1307 – A debtor has a right to dismiss its Chapter 13 bankruptcy case if the bankruptcy began as a Chapter 13 case, but the court may place restrictions on a debtor’s ability to file a subsequent bankruptcy case.
b) Voluntary Conversion to Another Chapter – A debtor can file a motion to voluntarily convert its case to a case under a different bankruptcy chapter. IMPORTANT NOTE: When any bankruptcy case is converted, there are new responsibilities and deadlines for filing case commencement documents, and the debtor must attend a new 341(a) meeting of creditors. It is highly recommended to consult a bankruptcy attorney about the impact of converting a bankruptcy case.
Chapter 7 – See Bankruptcy Code Section 706.
Click here for a form Motion to Convert under 706(a)
Click here for a form Notice of Motion to Convert under 706(a)
Click here for a form Order to Convert
Chapter 11 – See Bankruptcy Code Section 1112(a).
Click here for a form Motion to Convert under 1112(a)
Click here for a form Order to Convert under 1112(a)
Chapter 13 – See Bankruptcy Code Sections 1307(a) and 1307(g).
Click here for a Notice of Conversion from Chapter 13 to Chapter 7
To convert a Chapter 13 case to a Chapter 11 bankruptcy case, the debtor must file a motion and schedule a hearing for the court to rule on its motion.
|38.||Can the Court Dismiss or Convert a Bankruptcy Case Without the Debtor’s Consent||If a debtor is not complying with bankruptcy requirements, a trustee or creditor can file a motion to dismiss or convert a bankruptcy case under Bankruptcy Code Sections 706, 707, 1112 or 1307, or the court can set an Order to Show Cause re Dismissal/Conversion.
DISMISSAL HAS SERIOUS CONSEQUENCES. If a bankruptcy case is dismissed at the request of a trustee or creditor, or by the court on its own motion, the debtor may be prohibited from filing another bankruptcy case for 180 days [Bankruptcy Code Section 109(g)] or be required to file a motion to obtain permission to file another bankruptcy case (Bankruptcy Code Section 349).
|39.||How do I Reopen a Bankruptcy Case, and is a Fee Required?||a) Filing a Motion to Reopen – Even though a bankruptcy case is closed, a debtor, trustee, or creditor may want the court to hear motions and enter orders in that bankruptcy case. If so, it is necessary to file TWO MOTIONS. The First Motion is a Motion to Reopen Bankruptcy Case, which may or may not be set for hearing depending upon the particular judge. In most situations a filing fee will be required, and the fee will differ in a Chapter 7, 11, or 13 case. The judge will generally rule on whether to grant the Motion to Reopen before the judge will consider any motion you wish to file once the case is reopened.
Click here for a list of reasons for reopening a case and which reasons require a filing fee.
b) Filing the Underlying Motion or Certificate re Personal Financial Management – If the judge grants the Motion to Reopen the case, it is time to file the Second Motion. The Second Motion is often a motion to avoid a judgment lien or a motion to extend the time to file Form 23, Debtor’s Certification of Completion of Course Concerning Personal Financial Management.
If the purpose of reopening the bankruptcy case is to allow filing of the Certification of Completion of Instructional Course Concerning Personal Financial Management, attach Form 23 to the FIRST MOTION, as the judge may allow Form 23 to be filed without the debtor having to file a second motion and without conducting a second hearing. For information on filing Form 23, the Certification of Completion of Instructional Course Concerning Personal Financial Management, see FAQ Before Filing #16.
c) Exception to Needing to Reopen Bankruptcy Case – It is not necessary to file a Motion to Reopen the case in order to file an adversary proceeding pursuant to Bankruptcy Code Section 523(a)(3).
|40.||How do I get a Bankruptcy Removed from My Credit Report?||Credit Report — In general, the Bankruptcy Court does not control the actions of credit reporting agencies. Debtors must directly contact credit reporting agencies to discuss how long a bankruptcy case remains on a credit report. If debtors have questions about this or have problems gaining cooperation from credit agencies, a debtor may contact the Federal Trade Commission, Consumer Response Center (CRC-240), Washington, D.C. 20580. The telephone number is (202) 326-2222. Here are general rules:
Improper Involuntary Bankruptcy Case – If a party has improperly filed an involuntary bankruptcy petition against a debtor, the bankruptcy court may enter an order prohibiting credit reporting agencies from reporting the bankruptcy on the debtor’s credit report.
Voluntary Bankruptcy Case – The Fair Credit Reporting Act, 15 U.S.C. Section 1681 et seq., is the law that controls credit reporting agencies. The law states that credit reporting agencies may not report a bankruptcy case on a person’s credit report after ten (10) years from the date the bankruptcy case is filed. Generally, bad credit information is removed after seven (7) years. The larger credit reporting agencies belong to an organization called the Associated Credit Bureaus. We are informed that the policy of the Associated Credit Bureaus is to remove successfully completed Chapter 13 cases from the credit report after seven (7) years to encourage debtors to file under this chapter.