Archive for month: November, 2023

Involuntary bankruptcy is a legal avenue for creditors to force a person or business into bankruptcy proceedings when they cannot collect debts. Unlike voluntary bankruptcy, where debtors initiate the process, involuntary bankruptcy occurs when creditors petition the court.

Involuntary bankruptcy proceedings can be a powerful tool for creditors seeking to recover debts from reluctant debtors. However, the process is complex and laden with challenges.

Conditions for Involuntary Bankruptcy

 

• There must be a minimum number of creditors.
• The total debt owed must meet a specific threshold.
• The debtor retains the right to challenge an involuntary bankruptcy filing, ensuring due process.

Initiating Involuntary Bankruptcy

Involuntary bankruptcy is rare and significantly differs from the more common voluntary bankruptcy. In voluntary bankruptcy, debtors file for bankruptcy to reorganize or eliminate their debts. In contrast, creditors instigate involuntary bankruptcy when they believe the debtor can pay but refuse to do so.

The process begins when a creditor files a petition with the bankruptcy court. The petition outlines the creditor’s claims and specifies whether they seek Chapter 7 or Chapter 11 bankruptcy. It is crucial to note that Chapter 12 and Chapter 13 bankruptcy options are not available under involuntary bankruptcy.

The petitioning creditors also must state the reason for initiating the involuntary bankruptcy, such as the debtor’s failure to pay debts on time, the seizure of the debtor’s property by another entity to enforce a lien, or the creditor holding a non-contingent claim against the debtor.

Filing an Involuntary Petition

Creditors must meet specific criteria to file an involuntary petition under Chapters 7 or 11 of the Bankruptcy Code. The debt owed or such debts must be at least a certain amount, and such debtor’s debts must generally be delinquent in their payments. If the debtor has 12 or more creditors, at least three must join the petition.

Once the petition is filed, the debtor has the opportunity to respond. The involuntary bankruptcy works, and proceedings will continue if the debtor fails to respond. However, in most cases, the debtor will file an objection to the petition, essentially contesting the involuntary bankruptcy. This objection transforms the case into a formal legal dispute regarding liability proceedings.

Debtor’s Response and Court Decision

Once filed, the debtor has 21 days to respond. If they do not respond or the court rules favor the creditors seeking involuntary bankruptcy, an “order for relief” is issued, placing the debtor into bankruptcy. Alternatively, debtors can convert their bankruptcy procedure from an involuntary case to a voluntary one.

The number of qualifying creditors plays a crucial role. If fewer than 12 creditors exist, a single creditor can file an involuntary bankruptcy petition. However, if there are more than 12 creditors, a minimum of three must agree and join the petition to move forward.

Response Hearing

If the debtor responds to the petition, a hearing is scheduled. During this hearing, the court evaluates the arguments of both parties. The presiding judge will decide whether the involuntary bankruptcy case should proceed or be dismissed.

In Favor of the Debtor

If the judge rules in favor of the petitioning creditor filed against the debtor, the bankruptcy is dismissed. Sometimes, the court may order the petitioning creditor to cover the debtors’ legal costs and fees.

In Favor of the Creditor

If the judge rules in favor of the creditor, the involuntary bankruptcy can proceed. This decision marks the formal beginning of the involuntary bankruptcy process for the debtor.

Bona Fide Dispute: Understanding the Legal Term

“Bona fide,” derived from Latin, translates to “good faith” in English. It holds significant meaning in legal contexts and signifies honesty, authenticity, or genuineness. When someone is referred to as a “bona fide purchaser” or a “bona fide holder,” it implies that they acted in good faith, without any knowledge of circumstances that might question their right to hold a particular title, property, or claim.

In essence, being a bona fide party suggests innocence or lack of awareness about any facts that could raise doubts about their legitimate ownership, right, or entitlement in a given situation. A bona fide individual or entity debtor is generally considered genuine and trustworthy in their actions, transactions, or claims, and they are often protected under the law due to their honest intentions and lack of fraudulent or deceptive behavior.

A bona fide dispute in the context of billing and financial transactions refers to a genuine and valid disagreement or claim made by one party regarding specific charges or amounts billed by another party. To be considered a bona fide dispute, several conditions must be met:

1. Specificity: The disputing party must identify the exact amount in dispute as to liability only. This amount should be clearly stated in the dispute notice.
2. Explanation: The disputing party must provide a clear and comprehensive explanation for the dispute. This explanation should outline the basis for the disagreement with the charges.
3. Supporting Documentation: The disputing party must support their claim with written documentation substantiating it. This documentation serves as evidence and must be provided to strengthen the validity of the dispute.
4. Itemization: The notice must be itemized if the dispute involves multiple charges or accounts. It should specify the account number(s) to which the disputed amount applies.
5. Usage Disputes: In cases involving disputes related to usage, additional details such as billing date, invoice number, Billing Account Number (BAN), and supporting usage records must be provided.
6. Circuit Disputes: For disputes involving circuits, specific information like billing date, invoice number, BAN, circuit identification number(s), and USOC(s) must be included. A detailed description of the dispute is also required.

Exclusions from Bona Fide Dispute:

– Refusal to pay without written documentation is generally not paying and is considered a bona fide dispute.

– Refusal to pay other amounts owed during the dispute resolution process is not classified as a bona fide dispute.

– Claims for punitive damages are not regarded as bona fide disputes within the defined context.

– Bona fide disputes do not include actual calls made by the customer or unauthorized third parties and such claims as fraudulent calls.

Considerations for Creditors

Given these challenges, creditors must carefully evaluate the situation before initiating involuntary bankruptcy. A thorough analysis of the debtor’s financial state, existing disputes, and potential defenses is essential. Strategic filing, with an eye on the unique circumstances that justify bankruptcy relief, can improve the chances of a successful involuntary petition. Before pursuing involuntary bankruptcy, creditors must carefully evaluate the situation. Several critical questions must be addressed:

Creditor Qualifications

Creditors must have a non-contingent, undisputed debt to file an involuntary petition. Acquiring a debt solely for bankruptcy purposes is not allowed.

Debtor InvestigationCreditors are responsible for thoroughly investigating the debtor’s financial situation contingent 

on liability. This includes understanding the debtor’s operations and transactions with other entities.

Other Creditors

The debtor’s assets and the number of creditors play a role. A single creditor can file the petition if the debtor has fewer than 12 creditors. If more than 12, at least three creditors must join.

Potential Outcomes

Creditors need to consider the possible scenarios. If successful, the bankruptcy case may lead to liquidation or reorganization. However, the process can be time-consuming and costly. Creditors should also know their standing relative to other creditors in distributing recovered assets.

• Asset Liquidation: Both types can lead to liquidating assets to settle debts, impacting the debtor’s financial stability.
• Credit Impact: Bankruptcy significantly affects credit scores, challenging securing future financing or credit.
• Financial Future: Both voluntary and involuntary bankruptcies have long-term consequences, necessitating careful consideration before pursuing bankruptcy.

Alternative Solutions

Considering involuntary bankruptcy’s costs, risks, and potential outcomes, creditors must weigh it against alternative solutions. Negotiating a settlement outside of court might be more beneficial, especially for debtors who are financially struggling but still operational.

In summary, involuntary bankruptcy is a complex legal process that creditors and bankruptcy courts can initiate to compel debtors to address their outstanding debts. However, it requires careful assessment and consideration of alternative options to determine the most suitable course of action.

Voluntary Bankruptcy vs. Involuntary Bankruptcy Petition

Voluntary bankruptcy occurs when an individual or a business willingly files for bankruptcy. The debtor, facing financial distress and unable to meet obligations, opts for bankruptcy relief. This choice is often made to restructure debts or gain relief from overwhelming financial burdens.

In the United States, voluntary bankruptcy can be filed under different chapters of the bankruptcy code.

– Chapter 7: Involves liquidation of non-exempt assets to pay off creditors, followed by the discharge of remaining debts.

– Chapter 13: Allows the debtor to propose a repayment plan spanning three to five years, facilitating gradual debt repayment.

Involuntary bankruptcy is initiated by the debtor’s creditors, compelling the debtor into bankruptcy proceedings. Creditors resort to involuntary bankruptcy when they believe the debtor possesses sufficient assets to cover debts but neglects repayment efforts.

In the United States, involuntary bankruptcy can be filed under specific chapters of the bankruptcy code.

– Chapter 7: Similar to voluntary Chapter 7, it involves liquidating assets to settle debts.

– Chapter 11: Pertains to businesses, allowing for reorganization and debt repayment under court supervision.

Both voluntary and involuntary bankruptcies are serious financial decisions. While voluntary bankruptcy offers debtors a chance to restructure or relieve their debts, involuntary bankruptcy places control in the hands of creditors, ensuring debtors meet their financial obligations.

Regardless of the type, individuals and businesses must weigh the implications carefully, as these decisions have a lasting impact on financial stability and creditworthiness. A bankruptcy lawyer can help a person or company get to the other side successfully.

While involuntary bankruptcy remains a potent tool for creditors, recent legal developments have heightened the risks. Careful assessment of the debtor’s situation, legal strategy, and understanding of the nuances of bankruptcy law are crucial for creditors aiming to maximize recovery while minimizing legal challenges and financial penalties. As the legal landscape evolves, creditors must adapt strategies to navigate this complex terrain effectively.

When initiating bankruptcy proceedings for the first time, it is imperative to grasp the lexicon employed during the procedure. Many individuals often find themselves perplexed by the disparity between “dismissal” and “discharge” within the context of bankruptcy processes.

1. Dismissal Of A Bankruptcy Case

Dismissal typically denotes that the court has halted all proceedings within the primary bankruptcy case and any related adversary proceedings, and a discharge order has not been issued. Dismissal can transpire if a debtor voluntarily requests it and meets the criteria for voluntary dismissal.

Alternatively, dismissal can transpire without the debtor’s consent if the court mandates dismissal on its own accord or if a trustee or creditor files a motion for dismissal, which the court subsequently grants.

Dismissals in Chapter 13 vs. Chapter 7

In different bankruptcy chapters, Chapter 13 bankruptcy typically involves higher costs and a lengthier process than Chapter 7 bankruptcy.

In Chapter 13, individuals must craft a repayment plan outlining how to repay a portion of their debt and adhere to this monthly payment plan for three to five years. Consequently, Chapter 13 bankruptcy cases are more susceptible to being dismissed before receiving a discharge.

If a Chapter 13 filer fails to make a payment as stipulated in their repayment plan, it can lead to the dismissal of their case. The most common reason for dismissal in Chapter 13 cases is missing a payment on the repayment plan.

Voluntary Bankruptcy Dismissal

A debtor can submit a request for voluntary dismissal of their bankruptcy case. However, whether the court grants this request depends on various factors, including the specific chapter of bankruptcy filed and the debtor’s previous bankruptcy history.

Restarting A Bankruptcy After Dismissal

You can restart the bankruptcy process if your case is dismissed. To do so, you’ll need to file a Motion to Reinstate. This is a written request submitted to the Bankruptcy Court, asking them to cancel or set aside the dismissal order.

When filing a Motion to Reinstate, explaining how you’ve rectified the deficiency or error that led to the dismissal is essential. Failure to address this issue within the timeframe stipulated by your local court rules may result in the closure of your case.

If your bankruptcy case is closed, you must file a motion to reopen the claim or initiate an entirely new bankruptcy case to proceed.  When initiating a new case within one year of the prior case dismissal, it will require you to file a motion for a stay extension within 30 days of the case filing. This will allow you to keep the bankruptcy in place after the 30 days expire.

What Does ‘Dismissal Without Prejudice’ Mean?

In certain instances, it is feasible to reinstate a bankruptcy shortly after its termination. You can initiate a new bankruptcy filing if a substantial period has elapsed. Generally, courts issue terminations “without prejudice.”

In this context, “without prejudice” signifies that the terminated case does not preclude you from commencing a fresh bankruptcy proceeding. Regrettably, if the termination is “with prejudice,” you may be prohibited from pursuing bankruptcy or compelled to await a prescribed timeframe before resuming bankruptcy proceedings. Cases entailing bankruptcy fraud may not permit debtors to commence a new case.

If you elect not to file bankruptcy again, you must rectify the issues that precipitated the termination before initiating another case. During this interim period, creditors retain the prerogative to communicate with you and institute legal measures to recover the outstanding debt.

Call An Experienced Bankruptcy Attorney

Given the intricacies associated with bankruptcy cases, securing legal representation is paramount. With a proficient legal advocate at your side, you can preemptively evade terminations, as they can deftly navigate each phase of the bankruptcy filing procedure on your behalf, mitigating the common errors individuals often commit while embarking on the bankruptcy journey.

2. Bankruptcy Discharge

Typically, the primary objective of commencing bankruptcy proceedings is to effectuate debt discharge. A discharge transpires when the bankruptcy court issues a decree proclaiming that you are no longer legally obligated to reimburse the discharged debt.

After a discharge, most unsecured creditors are precluded from instigating legal actions to reclaim any remaining debt they owe. They are also forbidden from establishing communication via any means, encompassing written correspondence, personal interaction, and telephonic contact, about the discharged debt.  When a creditor violates the discharge by seeking to collect the debt subject to the discharge, you may reopen the bankruptcy case to pursue a motion against the creditor for the discharge violation.  If successful in the motion, the Court may grant the Debtor punitive damages and attorney fees to deter future creditors from violating the discharge injunction.

Debts Discharged in Bankruptcy Court

Not all kinds of debt can be erased in bankruptcy. Identifying which debts can be forgiven can help you save time and money. You can request forgiveness by filing bankruptcy for unsecured loans, car accident claims, credit card balances, medical bills, overdue utility payments, lease obligations, and personal loans.

Some debts are usually not forgiven in bankruptcy, except in particular situations. These include student loans, child support, alimony payments, certain taxes, fines imposed by the government, debts from fraud, and fines and restitution from criminal activities.

Chapter 7 and Chapter 13 Bankruptcy Payment Obligations

The timing of debt discharge hinges upon the category of bankruptcy under which you have filed. Chapter 7 bankruptcy typically absolves your debts a few months after issuing your bankruptcy decree. Conversely, Chapter 13 bankruptcy cases adhere to a distinct structure.

Under Chapter 13, you partake in a debt reorganization scheme, necessitating partial repayment of your debt through a predetermined installment plan over an extended duration. Upon fulfilling your payment arrangement, any remaining dischargeable debts are then absolved.

Closing Of A Bankruptcy Case

Closure signifies the conclusion of all activities associated with the main bankruptcy case. This encompasses the resolution of all motions and submitting a statement indicating the fulfillment of all trustee responsibilities if a trustee was appointed.

However, closure does not inherently imply that a discharge has been granted unless all procedures connected to determining eligibility for discharge have been finalized.

If a bankruptcy case is closed without a discharge, typically due to an individual debtor’s failure to timely submit a Certificate of Completion of Instructional Course Concerning Personal Financial Management, the debtor must file a Motion to Reopen the Case.

Additionally, a bankruptcy case may receive a discharge, but the case can remain open for various reasons, such as the Chapter 7 Trustee seeking to liquidate bankruptcy estate assets post-discharge.

Closing Without A Discharge

Cases may be closed without a discharge when the debtor fails to fulfill the necessary debtor education requirements, which are essential conditions for receiving a discharge. Additionally, if you stumble at the final stage of the debt relief process, your case can be closed without a discharge. This may occur if your initial filing needs to be submitted within the required timeframe.

In conclusion, understanding the distinctions between bankruptcy dismissal, discharge, termination, and closure is essential when navigating the complex bankruptcy process. Dismissal typically halts proceedings without a discharge, while discharge relieves you of certain debts.

Terminations and closures can occur for various reasons, often due to errors or missed requirements, and may or may not involve discharge. A bankruptcy attorney can provide crucial guidance in these situations, helping you navigate the process effectively and avoid potential pitfalls.