Bankruptcy for Volunteer Attorneys Transcript (Colorado Legal Services, Montana Legal Services Association, and Utah Legal Services)

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1 Bankruptcy for Volunteer Attorneys Transcript (Colorado Legal Services, Montana Legal Services Association, and Utah Legal Services) Bankruptcy for Volunteer Attorneys This training is designed to assist you in representing a debtor through the process of filing for Chapter 7 bankruptcy, which is primarily for consumer debt. It does not address additional chapters of the bankruptcy code in detail. We will call the debtor he and the client throughout this training. All of the links and resources referenced in this training will be available in a handout when you're finished. This training has been funded by the Legal Services Corporation through a Technology Initiative Grant, and covers aspects of filing Chapter 7 Bankruptcy in Montana, Colorado, and Utah. This training is designed to cover the basics, and volunteer attorneys are encouraged to take CLE's, find mentors, and engage in other activities to increase their knowledge of bankruptcy law. Types of Bankruptcy Chapter 7 Bankruptcy is a legal proceeding in federal court in which a client can discharge most of his debt or enter into a payment plan to repay the debt. Completion of each step is essential. In addition to following all of the steps, it s important to check with the bankruptcy court to make sure you have all the necessary documents, because requirements occasionally change. This training will cover Chapter 7 Bankruptcy in detail, but there are several other kinds. Most bankruptcy code is part of federal law, but there are some states that deviate slightly from federal code, which affects the process and outcome of a Chapter 7 Bankruptcy. Click on a type of bankruptcy to learn more about it. Chapter 7 is subject to property exemptions in your state, along with secured creditors rights. An appointed trustee liquidates any non-exempt assets a client has to split between the creditors, and the remaining debt is discharged. For a general overview of Chapter 7, see page 14 of Bankruptcy Basics, published by the federal courts. Chapter 11 is primarily for businesses (though individuals whose debt exceeds the Chapter 13 debt limitations can also file for Chapter 11) which wish to reorganize their business to repay debt by reducing the debt or extending the time for repayment. For a general overview of Chapter 11 see page 29 of Bankruptcy Basics. Chapter 13 is for individuals who have regular income and want to keep a valuable asset by continuing to make some payments through a court approved 3-5 year payment plan. This is a good option for clients who are facing foreclosure and have the ability to make payments. For a general overview of Chapter 13, see page 7 of Bankruptcy Basics. You may be asked for help by clients who aren't sure if they should file for bankruptcy. There are several steps you can take to help a person decide if filing for bankruptcy is right for them. Helping a Client Decide First, ask your client to walk through the Is Bankruptcy Right for Me online informational resource. This interactive program will define Chapter 7 Bankruptcy, and help the client understand what he will need to consider prior to deciding to file.

2 Next, find out if the client is collection proof. Collection proof means he does not have any assets or non exempt income. This means that even if a creditor gets a judgment against the client for the amount they owe, the client has nothing the creditor can take to satisfy that judgment. Therefore, the client has the option of simply ignoring the creditors and not paying. However, the client still needs to attend all court hearings and explain his or her financial situation if served with a new summons and complaint or a subpoena or interrogatories by a creditor with a judgment. If the client chooses to deal with their situation without filing a Chapter 7, you can help by suggesting that he send a letter to the collection agencies to help reduce the number of harassing phone calls the client receives. However, creditors can still call between 8:00 a.m. and 9:00 p.m., even on weekends, but only to notify the client they are seeking other legal remedies. The client should keep a log of any harassing phone calls they receive. Is Bankruptcy Right for this Client? While there are always pros and cons to filing for bankruptcy, there are several situations that can help a person decide if filing may or may not be a good idea. Do you know what those are? Click on a potential situation to see if it indicates that bankruptcy is a good or bad idea. The client is temporarily unemployed: Maybe Not... The client only has secured debt: Maybe Not... If the client only has secured debt, bankruptcy may not be a good option if the client is attempting to save the asset. It would be better to try to negotiate with the creditor for a modified payment plan, or consider filing Chapter 13. However, if they are up to date on their payments they can still file Chapter 7 and reaffirm the debt. Remember that a mortgage lender cannot foreclose on real property unless the client is behind on payments, therefore even in a Chapter 7 it is not necessary to reaffirm the mortgage debt if the client is up to date on the payments. The client will be inheriting valuable assets: Maybe Not... Bankruptcy may not be a good option for someone who will soon be inheriting valuable assets, because once they receive the assets, the trustee will be able to seize their newly acquired assets to pay creditors. The trustee can take new assets for up to 6 months after discharge. The debt is dischargeable: Maybe Not... You will want to consider how much of the clients debt is dischargeable. Credit card debt, medical bills, and business-related expenses are generally dischargeable. However, student debts, taxes, and child support are generally not dischargeable. Make sure that if they file bankruptcy that the discharged debt will free up enough disposable income to allow them to make payments on their non dischargeable debt. The client recently received a discharge of debt: Maybe Not...The client cannot file bankruptcy if they have recently received a discharge of their debt. A debtor can only file for a chapter 7 discharge every 8 years. If they filed a chapter 13 in the past they have to wait 2 years before filing another chapter 13. If they filed a chapter 7 in the past they can file Chapter 13 after 4 years. The goal is to wipe out debt: May be beneficial... If the client's primary goal is to wipe out debt, filing Chapter 7 Bankruptcy may be right for them if wiping out the debts will allow them sufficient disposable income to provide for themselves and pay any non dischargeable debt. Debt consists mostly of medical or credit card:

3 May be beneficial... If most of the client's debt is medical bills and credit card debt, filing Chapter 7 Bankruptcy may be right for them. Unlikely for client to repay debt from current salary: May be beneficial...if it is unlikely that the client could repay the debt from his current salary, making his debt "crippling", filing Chapter 7 Bankruptcy may be right for him. Is being garnished and cannot make other payments: May be beneficial...if the client is currently being garnished and is having a difficult time keeping up on other payments (and their debt is threatening house ownership, utilities, etc), filing Chapter 7 Bankruptcy may be right for them. The client is collection proof: Maybe Not... Bankruptcy may not be the right choice if the client is collection proof. Exceptions to this include: there is a mental health-related complication present, or the client is likely to come into money within the statute of limitations to allow the creditor to collect Debt is less than $5,000, or not crippling : Maybe Not... If the debt is less than $5,000 or not crippling enough and the client can pay it back. (But remember, filing Chapter 7 is like using a last option insurance plan - once the client cashes out he or she cannot file again for 8 years.) Likely to be back in debt from ongoing expenses: Maybe Not... If the client is likely to get right back into debt due to an ongoing expense (for example, the client has medical bills and they are still being treated.) No health insurance, likely to incur expenses: Maybe Not... The client and/or family members do not have health insurance and are likely to incur expenses they cannot pay. (Even if the client does not currently face any medical expense, he or she never knows what could happen, and needs to understand the risks.) Won t be able to make payments, even after bankruptcy: Maybe Not... If the client s income will not allow them to continue to make payments on remaining debt or expenses, even after filing bankruptcy it may not be a good idea to file. Assets could be at risk from filing: Maybe Not... If the client has assets which could be put at risk by filing. For example, filing a bankruptcy late in the year, since the trustee could wait until the client files his tax return. The trustee would likely take the client s tax refund. It is best to advise the client to file their taxes and spend the money on exempt items before filing, and to keep records of how it was spent. Initial Consultation When you have your initial consultation with a client, there are several things you should advise them to bring to the first meeting. Check off each item on the list to hear more. A list of all outstanding debts (what and who is owed), including monies owed to any collection agencies or attorneys. The client needs to request credit reports from Equifax, Experian and TransUnion to make sure they have not forgotten about a creditor. If the client has not done this in the past year, it will be free at (If the client is asked for a credit card number during this process, the client is not on the right website.) If the client has moved a lot the credit bureau may require a written request. A list of assets, including all personal property owned by the client such as cars, boats, trailers, timeshares, all personal items in home, pensions and retirement accounts, recreation equipment, electronics, etc. They should also estimate the value for which they could sell their property at a garage sale.

4 Documents pertaining to any real property they own, including mobile homes, residence and vacation homes If the client is currently employed or was in the last six months, have them bring their last three paystubs, including their employer s name and location A detailed budget for any income the debtor takes home, including any expenses such as utilities, food. Any other paperwork the client has which could pertain to his financial situation and may be relevant to the bankruptcy. This should include any information about other legal actions that may affect the bankruptcy such as divorce & paternity actions, criminal matters where there may be restitution ordered, any collection actions already filed, etc. In the case of divorce, it s usually better to file for bankruptcy before the divorce, if possible. Credit Counseling Course Your client must complete an approved credit counseling course at least 180 days before filing the petition. Click the link for a list of approved credit counseling agencies by state and judicial district. Many of them are available to take online, and many offer fee waivers. The Certificate of Completion will need to be filed with the original bankruptcy petition. If your client decides to continue with the bankruptcy pro se, there are resources you can provide. Click on the pro se button to see more information, or click next to continue with information about how to represent a client in a Chapter 7 Bankruptcy. Listing Property To begin the process of filing for Chapter 7 Bankruptcy, the client will need to provide a list of all of their property, income sources, debts, and monthly expenses. The lists will help you fill out the paperwork that you will then submit to the Court on your client s behalf. The client should include the information for members of the household, which means listing all of their spouse s assets and debts, even if they are not filing bankruptcy jointly. If the client is having a difficult time valuating their entire household, have them look on craigslist.com, ebay.com or at the online classifieds from the local newspaper website in their city to see what other people are asking for similar items. Remember to check the Kelly Blue Book to determine the value of the client s car. Forms and List of Creditors You will need to submit a list of the client s creditors and their addresses to the Court. The Court will notify creditors that your client has filed for Bankruptcy and that an automatic stay is in place. If your client has any interest accumulated in an educational retirement account or a state tuition program, you will need to provide a record of that account in addition to the list. You may also have to file a statement of any anticipated increase in income or expenditures your client will have over the next twelve months. Click on your state flag for links to downloading bankruptcy forms, and for information about how to create and submit a creditor's list in your state. (Note: a Verification of Creditor Matrix is usually filed with the courts along with the creditor list.) Reaffirming Debts (Note debts are usually repaid as part of Chapter 13, not Chapter 7, but since they are repaid sometimes as part of Chapter 7 then we thought it best to include the information here). If you client has exempt assets and

5 wishes to keep them, one option is to file bankruptcy and then continue to pay the debt. However, some creditors may require the client to sign a reaffirmation agreement. Essentially, by reaffirming the debt the creditor will work with the client to modify the payment plan to get caught up with back payments. The creditor will want to make sure that the client will be able to make the payments, so you will have to show that the client has some source of income to make the payment once the other debt is discharged. Additionally, some creditors may require you to use their forms. Often these agreements are not favorable to the client and may not be worth the asset they are trying to keep. Examples of exempt debt that your client may want to reaffirm include: A car where the bank has the title A mortgage on a house (remember that if they are up to date on their mortgage payments the bank cannot foreclose so there will not be any need to reaffirm) A washer and dryer bought on a credit card Fee Waiver or Installment Payments If you are filing a Chapter 7 for your client and he is unable to pay the filing fee you can apply for a fee waiver. Click on the form for a link to the waiver. The Court will decide if the fee can be waived based on your client s income. If the client has the money to pay in installments the Court may order that the fee be paid. Remember that you cannot get a fee waiver if your client paid you to prepare their forms. Filing Bankruptcy Once you have all the required documents completed, and your client s counseling course certificate, you need to file them with the Court. The client will also need to pay the filing fee at this time if he didn't request a fee waiver, or if his fee waiver request was not approved. Where do I File? The filing process varies from state to state. Click on your state flag for information about how to file. Montana: In Montana, you must file your bankruptcy forms in Butte. You can either deliver them in person, or mail them to the following address; Clerk of Court U.S. Bankruptcy Court 400 N Main St, Room 303 Butte, MT The office is open Monday - Friday, 8am - 4:30pm Colorado: In Colorado, you must file your bankruptcy forms in Denver. You may either deliver them in person, or mail them to the following address; United States Bankruptcy Court US Custom House 721 Nineteenth Street Denver, CO The office is open Monday - Friday, 8am - 5pm

6 Utah: In Utah, if you are filing the forms for your client you must file them electronically. This means that if you have not completed the course and received an account you must do that first. You can find more information about the CM/ECF program and training dates at An attorney can test out of the training if they are an efiler in any other federal court. Automatic Stay Once the Chapter 7 petition has been filed, the Court will mail notice to the client s creditors that an automatic stay is in place. An automatic stay means that creditors cannot call, garnish wages, send your client letters, start or continue an eviction action, foreclose on the house, or repossess property. Advise your client that if creditors call to tell them that they have filed for bankruptcy and that an automatic stay is in place. If the creditors violate the automatic stay, including contacting your client, you will have a cause of action against them. Remember the automatic stay also precludes your client form dividing property in a divorce action. The Fair Debt Collection Practices Act covers violations by third party collection agencies. Original creditors are not subject to the FDCPA but are governed by state law. The court will also appoint a trustee to evaluate the estate and determine whether there are any assets to liquidate in order to pay creditors. You will also be notified of any documents that may be missing, and will be given time to provide the requested information. The client must comply with all of the trustee s requests or the client s case could be dismissed. Meeting of Creditors Once the client has filed, you and your client will be required to attend a Meeting of the Creditors. At this meeting the creditors will be allowed to ask questions regarding your client s debt and assets to determine if they want to file anything in court to keep their debt from being discharged. You must send a copy of your client s most recent tax return to the trustee at least a week before this meeting. If your client has not filed past taxes, you should file them before making the determination to file for bankruptcy. The trustee will make them file and take all of the return rather than allowing your client to spend the money on exempt items. You will get a list of documents to take with you to the meeting of creditors from the Court. Second Counseling Course Before the debt can be discharged, your client is required to complete another counseling course called the Debtors Education Class. Your client CANNOT receive a discharge without having done this first. This course is usually completed online and there is normally a cost associated with taking the course. If needed, check with each approved course to see if the course fee can be waived. Discharging Debt You're almost there! In the last step of filing for bankruptcy the creditors will have an opportunity to file objections to the discharge. They can also request that you provide any missing documents that you haven't already filed with the court, which you will need to provide. Once the time period for filing objections has passed, the Trustee will file a report with the Court stating that the estate has been liquidated or that there were no assets to liquidate, or a no asset report. Once the report is approved by the Court, the debt will be discharged. Once the discharge is complete the court will mail Notice to the creditors. A Chapter 7 Bankruptcy usually takes about 90 days from filing the petition to the debt being discharged.

7 Tips for Providing Assistance We have a couple more tips on how to provide the best possible assistance to clients filing bankruptcy. Advise clients NOT to pay friends or family any money. If a client does this, the trustee can seek funds from the friends or family. They can work it out with their friends and family after the discharge is complete. Remember that a debtor can only file for Chapter 7 Bankruptcy once every 8 years. This is important to keep in mind when helping the client decide if bankruptcy is the right choice for them. Be sure to check the property exemptions for your state. A Notice of Automatic Stay will be issued by the court in the case to stop a garnishment or creditor phone calls. As a volunteer attorney, you can utilize the local programs available to you to learn more about bankruptcy and become more involved. This includes your local bar associations and their subcommittees, local courts, and pro bono coordinators and their programs. New attorneys should look for an experienced mentor to help them learn more about bankruptcy. Get Involved! The best way to learn bankruptcy law is to work with a legal services provider on a pro bono case. This way you will receive access to mentoring and other support. Montana: Volunteer with Montana Legal Services Association Utah: Colorado: Help with Bankruptcy Clinics, Contact Your Local Pro Bono Coordinator, Check with your Local Court Thank You! Thank you for taking the time to watch this training and for your interest in helping clients file for bankruptcy. A transcript of this training, along with the glossary, is available for you to download and print. We have also compiled a list of links to other resources that may be helpful to you. Please take a moment to take our short survey to provide valuable feedback on this training.

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