Prior bankruptcy prevents Chapter 7 discharge

A debtor cannot receive a discharge under Chapter 7 if he or she received a discharge in a Chapter 12 or Chapter 13 bankruptcy which was filed within 6 years before the present case is filed.
[11 U.S.C. § 727(a)(9)]

Prior bankruptcy prevents Chapter 13 discharge

A debtor cannot receive a discharge under Chapter 13 if he or she received a discharge in a Chapter 7, Chapter 11 or Chapter 12 bankruptcy which was filed within 4 years before the present case is filed.
[11 U.S.C. § 1328(f)(1)]

Taxes on returns due not discharged in Chapter 7

Taxes based on income or gross receipts for which a return (if required) was due within 3 years prior to the filing of the petition are not discharged in Chapter 7.  [11 USC §523(a)(1)(A)]  The date due includes any extensions, i.e., if the April 15 due date for income tax is extended to October 15 the later date will be used determining if the 3 year period has been passed.  [11 USC §507(a)(8)(A)(i)]  The 3 year period may be extended by any time in a bankruptcy plus an additional 6 months.  [11 USC §108(c), 26 USC 6503(h), IRC 6503(h)]

Penalties for taxes not discharged (above), tax penalties regarding a transaction within 3 years of filing, and government fines and forfeitures are not discharged.  [11 USC §727(b)]  [11 USC §523(a)(7)]

Debt incurred to pay taxes not discharged (above) are not discharged.  [11 USC §727(b)] [11 USC §523(a)(14), (14A))]

Prior bankruptcy prevents Chapter 13 discharge
A debtor cannot receive a discharge under Chapter 13 if he or she received a discharge in a Chapter 13 which was filed within 2 years before the present case is filed.  [11 U.S.C. § 1328(f)(2)]

Note:  In some circumstances a Chapter 13 may be of significant benefit even if a discharge will not be received.

Taxes on returns filed late not discharged in Chapter 7

Taxes for which returns (if required) were not filed or were filed within 2 years of the filing of the petition. [11 USC §727(b),  11 USC §523(a)(1)(B)(2)]

Penalties for taxes not discharged (above), are not discharged. [11 USC §727(b)]  [11 USC §523(a)(7)]

Debt incurred to pay taxes not discharged (above) are not discharged.  [11 USC §727(b)] [11 USC §523(a)(14), (14A)]

Transfers & obligations to hinder, delay, or defraud or done when insolvent set aside

The Trustee may recover property the debtor transferred and avoid obligations the debtor incurred which were done within 2 years before the bankruptcy, if the transfer or obligation were undertaken with the intent to hinder, delay, or defraud any entity, or when the debtor was insolvent.  [11 U.S.C. §548(a)(1)]

Transfer, concealment or destruction of property prevents discharge in Chapter 7

The court may deny a discharge of all debt if the debtor attempted to hinder, delay or defraud a creditor through the transfer, removal, destruction, mutilation, or concealment property within one year prior to the Chapter 7 bankruptcy.  [11 USC §727(a)(2)]

341 Meeting (Creditor’s Meeting)
Section 341 (the symbol “§” means section) of the Bankruptcy code requires the Trustee to preside at a meeting of creditors within a “reasonable time” after the filing of the bankruptcy. [11 USC §341]

This meeting is usually held approximately six weeks after Bankruptcy is filed.  The meeting time and date is included in the Notice of Commencement of Case mailed by the court, and is available on the court’s Automated Information Line shortly after the case is filed.

Each debtor is required to attend this meeting and testify under oath, but most creditors do not come to the meeting.  The failure of creditors to attend the meeting does not affect their right to challenge the discharge in a Chapter 7 or to object to the plan in a Chapter 13.  If the debtor does not attend, the case will be dismissed.

Payment to relative or insider is a Preference
A total of $600 or more in money or property which is paid to a creditor that is a relative or insider (certain business associates) within a year prior to filing is a preference. The Trustee may recover preferences and divide the money between all creditors.  (In Chapter 13, the debtor may be able to prevent the Trustee from going after the relative by increasing the amount paid into the plan.)  [11 USC §547(b)(4)(B), 11 USC §547(c)(8), 11 USC §101(31)]

Taxes assessed not discharged in Chapter 7

Taxes assessed within 240 days prior to the filing of the petition are not discharged in Chapter 7.  [11 USC §523(a)(1)(A)]  If an offer in compromise was pending, the 240 days will be extended by the days that it was pending, plus 30 days.  If a stay against collections was in effect under a prior bankruptcy, the 240 days will be extended for the time collection was stayed plus 90 days.  [11 USC §507(a)(8)(A)(ii)]

Penalties for taxes not discharged (above), are not discharged.  [11 USC §727(b)]  [11 USC §523(a)(7)]

Debt incurred to pay taxes not discharged (above) are not discharged.  [11 USC §727(b)] [11 USC §523(a)(14), (14A)]

Dismissal of prior bankruptcy prevents filing Chapter 7 or 13.
The debtor may not file any bankruptcy if he or she filed a previous bankruptcy which was dismissed in the preceding 180 days either (1) on the court’s order because of your willful failure to obey orders of the court or to appear in court when required; or (2) at the debtor’s request after the filing of a request for relief from the automatic stay.  [11 U.S.C. § 109(g)]

Debtor must take a credit counseling course in order to file bankruptcy.
(1) Subject to paragraphs (2) and (3), and notwithstanding any other provision of this section, an individual may not be a debtor under this title unless such individual has, during the 180-day period preceding the date of filing of the petition by such individual, received from an approved nonprofit budget and credit counseling agency described in section 111(a) an individual or group briefing (including a briefing conducted by telephone or on the Internet) that outlined the opportunities for available credit counseling and assisted such individual in performing a related budget analysis.[11 U.S.C. § 109(h)

Minimum state residency requirement
The debtor must have resided in the state where the bankruptcy is filed for the 90 days preceding the filing.  If the debtor has not resided in the state that long, the debtor must file in the state where he or she has resided, or has had his or her principal place of business or which has been the location of his or her principal assets for the majority of the last 180 days.  [28 USC §1408]

Payment to creditor is a preference
A total of $600 or more in money or property which is paid to a creditor within 90 days prior to filing is a preference. The Trustee may recover preferences and divide the money between all creditors.  (In Chapter 13, the debtor may be able to prevent the trustee from going after the creditor by increasing the amount paid into the plan.)  [11 USC §547(b)(4)(B), 11 USC §547(c)(8), 11 USC §101(31)]

Consumer debt presumed to be nondischargeable
Consumer debts owed to a single creditor and aggregating more than $550 for luxury goods or services incurred by an individual debtor on or within 90 days before the bankruptcy is filed are presumed to be nondischargeable in Chapter 7.  [11 USC §523(a)(2)(C)(i)(I), 11 USC §1328(b)]

Communication by creditor requires specific case notice to specific address.
Communication from creditor to the debtor within the 90 days before the bankruptcy requires use of specific address creditor has given in bankruptcy notices.  [11 USC §523(a)(2)(C)(i)(I)]

Debt presumed to be nondischargeable
Cash advances aggregating more than $750 (added by BAPCPA 10-17-05) that are extensions of consumer credit under an open end credit plan obtained by an individual debtor on or within 70 days before the bankruptcy are presumed to be nondischargeable.  [11 USC §523(a)(2)(C)(i)(II), 11 USC §1328(b)]

Schedules must be filed
In both Chapter 7 and Chapter 13, schedules of assets and liabilities, a schedule of current income and expenditures, a schedule of executory contracts and unexpired leases, and a statement of financial affairs must be filed within 15 days after the bankruptcy was filed.  [11 USC §521(a)(1), Rule 1007(b), (c) FRBP]

Chapter 13:  Plan must be filed
In Chapter 13, the Plan must also be filed within 15 days after the Bankruptcy was filed. The plan provides for submission of future income and the treatment of creditors, specifying when and how much each kind of creditor will receive.  [Rule 3015(b) FRBP]

Court Mails Notice of Commencement of Case
Approximately 18 days after the bankruptcy is filed, the court mails a Notice of Commencement of Case to the debtor and to the creditors included in the list of creditors.  The notice contains meeting date, deadlines for objections to discharge and for filing Proofs of Claims.

The court’s Automated Information Line provides much of this information almost immediately after the bankruptcy is filed.

Chapter 7:  Statement of Intention regarding secured debt must be filed
Within 30 days after a Chapter 7 has been filed (or before the § 341 meeting if that is earlier), the debtor must file a Statement of Intention regarding property secured by consumer debt.  That statement shall indicate whether the debtor intend to:  (1) reaffirm the debt and continue to make the payments remaining obligated for the balance of the debt, (2) redeem the property by immediately paying the value of the property, or (3) surrender the property.  [11 U.S.C. § 521(2)(A); Rule 1007(b)(2) FRBP]

A copy of the Statement of Intention must be served on the trustee and the creditors named in the statement on or before the filing of the statement.  [Rule 1007(b)(2) FRBP]

Chapter 13:  Plan payment due.
The debtor in a Chapter 13 must start making his plan payments within 30 days after the bankruptcy was filed.  [11 USC §1326(a)(1)]

Chapter 13:  Plan must be mailed.
Depending on local rules, the debtor or his attorney must mail a copy of the Chapter 13 Plan to all creditors within a specified time.

Provide copies of tax returns
Not later than 7 days before the date first set for the first meeting of creditors, the debtor shall provide a copy of the debtor’s most recent Federal income tax return to the trustee and to any creditors that have requested it.  [11 U.S.C. § 521(e)(2)]

341 Meeting (Creditor’s Meeting)
Section 341 (the symbol “§” means section) of the Bankruptcy code requires the Trustee to preside at a meeting of creditors within a “reasonable time” after the filing of the bankruptcy. [11 USC §341]

This meeting is usually held approximately six weeks after Bankruptcy is filed.  The meeting time and date is included in the Notice of Commencement of Case mailed by the court, and is available on the court’s Automated Information Line shortly after the case is filed.

Each debtor is required to attend this meeting and testify under oath, but most creditors do not come to the meeting.  The failure of creditors to attend the meeting does not affect their right to challenge the discharge in a Chapter 7 or to object to the plan in a Chapter 13.  If the debtor does not attend, the case will be dismissed.

Deadline to file objection to claim of exemption
If the Trustee or other party of interest objects to the debtor’s claim of exempt property, they must their objection within 30 days after the 341 meeting.  [Rule 4003(b) FRBP]

Chapter 7:  Debtor must perform under the Statement of Intention
In Chapter 7, the debtor must perform under the Statement of Intention, and (1) reaffirm the secured debt and continue to make the payments remaining obligated for the balance of the debt, (2) redeem the property by immediately paying the value of the property, or (3) surrendering the property.  [11 U.S.C. § 521(a)(2)(B); but 11 U.S.C. § 521(a)(6) appears to specify a time of 45 days after the meeting for the same action]

Chapter 7:  Deadline for objection to discharge of a particular debt under §523(c)
Creditors have until 60 days after the first date set for 341 meeting to file a complaint under 11 U.S.C. § 523(c).  That section  allows creditors to object to the discharge of debts which were obtained by false pretenses, a false representation, or actual fraud; debt from fraud or defalcation while acting in a fiduciary capacity, embezzlement or larceny; and debt for willful and malicious injury.  [Rule 4007(c) FRBP]

This deadline applies to objections to discharge of:
Consumer debts owed to a single creditor and aggregating more than $550 $500 (added by BAPCPA 10-17-05) for luxury goods or services incurred by an individual debtor on or within 90 days before a Chapter 7 bankruptcy  [11 USC §523(a)(2)(C)(i)(I), 11 USC §1328(b)], and

Consumer debts owed to a single creditor and aggregating more than $550 $500 (added by BAPCPA 10-17-05) for luxury goods or services incurred by an individual debtor on or within 90 days before the bankruptcy is filed are presumed to be nondischargeable in Chapter 7.  [11 USC §523(a)(2)(C)(i)(I), 11 USC §1328(b)]

Chapter 7:  Deadline for objection to discharge of all debt under §727(a)
Creditors have until 60 days after the first date set for 341 meeting to file a complaint under  11 U.S.C. § 727(a).  That section allows object to the discharge of all debts because of misconduct including transfer, destruction or concealment of property; concealment, destruction, falsification or failure to keep financial records; making false statements; withholding information; failing to explain losses; failure to respond to material questions; having received a discharge in a prior case filed within the last 6 years.  [Rule 4004(a) FRBP]

Chapter 7:  Deadline for U.S. Trustee or court to move to dismiss case for “substantial abuse” under §707(b)
Until 60 days after the first date set for the 341 meeting, the U.S. Trustee or the court may move to dismiss a case in which debts are primarily consumer debts if it finds that the granting of relief would be a “substantial abuse” of the provisions of Chapter 7.  [Rule 1017(e) FRBP]

“Substantial abuse” was expanded by the Bankruptcy Reform Act, which went into effect on October 17, 2005, to include a Means Test which allows Chapter 7 only if a debtor has less income than the median for the state of residence, or can pay less than 25% of his or her unsecured debt from income remaining after meeting expenses over a 5 year period.  [11 USC §707(b)]

Discharge entered in Chapter 7 case
Court rules require that the discharge be entered “forthwith” after the expiration of the time for objecting to discharge or moving to dismiss the case. The time for those objections expires 60 days after the first date set for creditor’s meeting.   [Rule 4004(c)(1) FRBP, Rule 4004(a) FRBP, Rule 1017(e) FRBP]

The discharge is not absolute or final. The Trustee can ask that the discharge be set aside if the debtor does not turn over non-exempt property, if the debtor fails to perform other duties, or if there were other matters pending which would result in the denial of the discharge.

Final payment on filing fees due.
If the Court allowed the debtor to pay the filing fees for a Chapter 7 or Chapter 13 in payments, the final payment must be made within 120 days after the filing of the bankruptcy.  [Rule 1002(b) FRBP]

Deadline for governmental unit to file Proof of Claim
A governmental unit, such as the Internal Revenue Service, must file its Proof of Claim within 180 days after the commencement of the case in order to share in payments from the estate.  [Rule 3002(c)(1) FRBP]

You may keep property received on this date or later as result of inheritance, bequest, devise, property settlements involving divorce, or beneficiary on life insurance. The above-mentioned if received after your bankruptcy case is filed is at risk of being liquidated by the Trustee if received within 180 days of filing. (§541)  IF YOU ARE IN A CHAPTER 13 YOU MUST CONTACT YOUR ATTORNEY TO SEE THE RULES IN YOUR PARTICULAR DISTRICT AND HOW §1329 APPLIES.

Chapter 7 Discharge:
A Chapter 7 discharge is a two step process.  First if there are no objections filed an order discharging all your qualifying debts will be entered.  The final step is the closing of the case through the entry of the Final Decree.   If there are no assets to administer (no stuff to sell) then the trustee will allow the case to be closed shortly after the entry of the discharge order.  However, if the trustee has assets to sell the case will remain open until the trustee has sold your non-exempt assets and paid your creditors.  This part of the case may take several years even though you still have a discharge.  If the trustee has assets to take then keep in touch with your attorney until your case is finalized and closed.

3-5 Years From the Date of Your First Payment in a Chapter 13
Upon your final payment under your Chapter 13 repayment plan, you will receive your formal discharge notice from the court.

5 Years From the Date of Your First Payment in a Chapter 13
Unless you have already completed your payments under your Chapter 13 repayment plan, your payments under your Chapter 13 plan must be complete within 5 years of the date of your first payment.

Discharge entered in Chapter 13
Upon completion of plan payments the discharge in Chapter 13 is entered.  [11 USC §1328]

Bankruptcy is a moving forward experience.  From consultation to completion, your goal is a “Fresh Start”.  Let us help you with the process.