Frequently Asked Questions
Find answers to the most frequently asked questions about consumer bankruptcy.
Since you have just filed a Chapter 13 Bankruptcy, you probably have a lot of questions! The following series of "Questions and Answers" is provided to you only for purposes of introduction and to give you some idea of what to expect. The Bankruptcy Code will determine what actually happens in your case. You need to discuss your individual concerns, legal rights, and specific questions about your particular situation and how the Bankruptcy Code will affect your case with your attorney, Mr. Gardner.
Chapter 13 is one form of bankruptcy in which you obtain relief from your creditors and submit a plan to pay your debts over a period of generally not less than 36 months and not more than 60 months. The Court prohibits your creditors from trying to collect any money or recover property from you during the time you are in your Chapter 13 plan. You must make a regular payment by Official Bank Check, Cashier's Check, or Postal Money Order to the Chapter 13 Trustee within 30 days after filing your plan and payments must be for the period of time designated in your plan. Your "first money" must be delivered to the Trustee at your first court meeting. The money collected by the Chapter 13 Trustee is disbursed to your creditors according to the plan after it is confirmed by the Court.
Your Chapter 13 petition is filed with the Clerk of the Bankruptcy Court in the (federal) District where you have lived, had your principal place of business, or had your principal assets located for the greater part of the last 180 days.
The Bankruptcy Court is a part of the system of federal courts and is a special court that was created by Congress just to hear cases and make decisions about disputes between debtors and creditors involved in a bankruptcy case.
Your Chapter 13 Bankruptcy case has been filed in the United States Bankruptcy Court for the Western District of North Carolina. All papers may only be filed with the Clerk of the Bankruptcy Court office, addressed as follows:
Clerk of the Court
United States Bankruptcy Court
P.O. Box 34189
Charlotte, NC 28234-4189
The Clerk of the Bankruptcy Court charges a $194.00 filing fee when the case is filed. The standard Chapter 13 legal fee for a non-business case is $1,600.00 for all basic or "base fee" services. These fees are established by federal law and local court rules. Almost all additional or "non-base" fees are also paid under your plan. The Chapter 13 Trustee receives an administrative fee of up to ten percent (10%) of the amount paid under the plan.
Fees for the Trustee are taken only when a disbursement is made to your creditors, including your attorney. The Trustee takes a small percentage of all money disbursed. The Trustee continues to take fees until all of your creditors have been paid according to your confirmed plan. Your annual financial reports issued by the Trustee show you how much the Trustee has received to date.
At the time your Chapter 13 petition was filed, the Bankruptcy Clerk assigned you a seven digit case number. The first two digits represent the year in which your case was filed. Your case number is very important. You will need it whenever you call the Trustee's office, when you make each payment to the Trustee your case number should be clearly written or when you obtain information from the Clerk's office. Your attorney has also assigned a four digit file number to your case for his own records. You should use this number whenever you contact your attorney about your case.
The Trustee and your attorney need to know your exact mailing address for as long as you are under Chapter 13. The Trustee has the address which you put on your petition, and the Trustee will send all notices and annual reports to that address until you or your attorney tell him to send them somewhere else. If you ever move or change your mailing address, you must INFORM your ATTORNEY, the COURT, and the TRUSTEE in WRITING of your new address. The Trustee also needs to know your current employer's name and address.
You have probably already received or will receive advice on what to do from well-meaning friends and relatives who have themselves experienced financial problems. Just like no two people are alike, no two "Chapter 13 Bankruptcies" are alike. Take the advice of your well-meaning friends and acquaintances with the proverbial "grain of salt." If you have a specific question about anything related to your bankruptcy, make it your rule to ASK YOUR ATTORNEY, and he will try to provide you with an answer that applies to your special situation.
Exactly what you may expect of your attorney will be governed by the fee agreement the two of you have made and that has been filed with your case. Under the rules of the Bankruptcy Court, your attorney must continue to appear and represent you until the judge permits your attorney to withdraw from your case. Any attorney may only withdraw from a case for "good cause" after proper notice to you.
Your attorney's function is to aid and assist you in successfully completing your Chapter 13 plan. Your attorney is there to answer any questions or concerns regarding your plan and the legal consequences of your case. Remember, your attorney is your legal advisor, not the Trustee. The Trustee and his staff are not allowed to give you legal advice regarding your case.
The Chapter 13 Trustee offices are open five (5) days a week, Monday through Friday. Mr. Tate and Mr. Gray maintain office hours from 9:00 a.m. to 5:00 p.m. Mr. Tadlock's office hours are 8:15 a.m. to 4:45 p.m. The Trustees follow the federal holiday schedule. The Trustee's main function is to administer the funds received from you. If you have a question about your plan's receipts and disbursements, you may wish to call the Trustee's office. Trained phone service representatives are available during office hours to answer your questions.
The Trustee is not able to talk with you personally about your case. His staff is familiar with the policies and guidelines of Chapter 13 and is well qualified to discuss with you any problems you may have implementing your plan. Remember, however, that the Trustee and his staff cannot and will not give you legal advice.
In the United States Bankruptcy Court for the Western District of North Carolina, you will have to appear for at least one court hearing generally known as the First Meeting of Creditors. This meeting is conducted by the Chapter 13 Trustee. The bankruptcy judge will not be attending this meeting. This meeting will be held within 30 to 60 days after your case is filed. You will be notified of the time, date and place of this hearing by your attorney and by the Trustee. This is a mandatory court appearance on your part. Your failure to appear at this meeting will result in the dismissal of your Chapter 13 case.
Confirmation hearings (i.e., final approval of your plan) are handled by your attorney and the Chapter 13 Trustee.
Yes. A Chapter 13 case may be converted to a Chapter 7 case at any time. You should contact your attorney if you are considering converting your case. Additional legal and court fees must be paid before a case can be converted to Chapter 7.
Under federal law, the filing of a Chapter 13 case automatically stops or stays all lawsuits, attachments, foreclosures, garnishments, repossessions, and other actions by creditors against either you or your property. A few days after your case is filed, a notice is mailed by your attorney and by the Trustee to all of your creditors advising them of this automatic stay. The creditors may be notified sooner by either you or your attorney if necessary.
Since you are now protected from your creditors under the Federal Bankruptcy Laws of the United States of America, please tell any of your creditors that contact you that you have filed for Chapter 13 relief and that your attorney is O. Max Gardner III of Shelby. You should also advise them to contact Mr. Gardner at (704) 487-0616. This is all you need to say to any creditor.
If you receive any verbal or written demands from creditors more than two weeks from the date your case was filed, please notify your attorney. If the contact is by telephone, then you need to obtain the telephone number of the person calling you, the name of the creditor or the collection agent, the mailing address for such party, the name of the person who called you, and how much money they want you to send. The best way to get this information is to "act stupid" and "be nice." If the contact is by mail, then you need to save the envelope for proof of the postmark date. You should notify your attorney of any such contacts.
Please note that creditors who contact you after being advised of your bankruptcy case are subject to various sanctions for contempt of Court and other violations of Federal Law. In many cases, the Bankruptcy Court will order such creditors to pay money damages to you (including legal fees to your attorney) for such violations. Your attorney always takes these cases on a contingency fee arrangement as set forth in the fee disclosure agreement. In short, unless your attorney recovers money damages from these creditors you will not owe him any additional legal fees for pursuing these type claims. Please be assured that the Bankruptcy Court takes these matters very seriously and that they are vigorously pursued by Mr. Gardner.
No. The automatic stay described in the previous question remains in effect during the entire Chapter 13 case and your creditors will not be permitted to take or otherwise proceed against any of your property or assets, including your earnings. However, if secured creditors to whom you are in default are not being paid under the plan or if you are not making your direct home mortgage payments, these creditors may go to the Bankruptcy Court and seek permission to repossess the property upon which they have a valid lien. Creditors secured by vehicle loans may also have your vehicle stored if you fail to maintain insurance on the vehicle securing the loan.
There are some exceptions to this general rule. The most common being child support, income tax refunds and certain property tax situations. For example, the IRS may apply your tax refund against any taxes included in your plan. The IRS must notify the Trustee of this action, but it is otherwise lawful. Specific questions regarding your situation and whether these exceptions apply to your case should be discussed with your attorney.
Your attorney always takes these cases on a contingency fee arrangement as set forth in the fee disclosure agreement. In short, unless your attorney recovers money damages from these creditors you will not owe him any additional legal fees for pursuing these type claims. Please be assured that the Bankruptcy Court takes these matters very seriously and that they are vigorously pursued by Mr. Gardner.
You cannot selectively "pick and choose" some particular creditors and decide to pay them "on the side." All of your debts must be dealt with through the Court. Any payments which you make to a creditor must be paid under the authority of the Court, by the terms of the law, and not by any personal desires. If you want to pay creditors, you must do so through your Chapter 13 plan.
Most student loans are not discharged in bankruptcy. You should refer more specific questions to your attorney.
If a consumer debt which has been co-signed or guaranteed by another person is being paid off in full under the Chapter 13 plan, the automatic stay that was entered when the case was filed will prevent the creditor from collecting the debt from the other person. However, the creditor may ask the Court's permission to collect from the other person the portion of the debt that is not being paid off under the plan.
The Trustee will only pay in full those co-signed debts that are specifically provided for in your plan. Please call your attorney if you have any questions.
The Court will confirm a Chapter 13 plan if:
- (a) the plan complies with the requirements of Chapter 13 generally;
- (b) all required fees, charges, deposits and payments have been made;
- (c) the plan has been proposed in good faith;
- (d) each secured creditor is allowed to retain his lien on his collateral and is paid the full amount of the secured claim under the plan;
- (e) each unsecured creditor will receive under the plan at least as much as the creditor would have received if you had filed a Chapter 7; and
- (f) it appears that the debtor will be able to make the required payments and to comply with the plan.
If the Court does not confirm the Chapter 13 plan you have proposed, it will usually state the reasons for such disapproval so that the plan may be appropriately modified, amended, converted to a Chapter 7 or dismissed. Once a case is dismissed, your creditors may again pursue the collection of your debts. Mr. Gardner will not file a Chapter 13 case unless he is very confident the plan will be approved by the Court.
A first payment must be made to the Chapter 13 Trustee within thirty (30) days of filing your bankruptcy plan. This payment (whether one, one and a half or two full monthly payments) is delivered to the Trustee at the First Meeting of Creditors. After the first meeting, your plan payments should be sent only to the Trustee's payment address. Be sure to keep the receipt for each payment. If your case is up for a motion or hearing in court, please give your attorney a copy of the payment receipt to prove the payment. Do not send your payments to the Clerk of the Bankruptcy Court or to your attorney.
All payments must be in the form of bank money order, postal money order or cashier's check. Be sure to include your name, address, and your bankruptcy case number on the money order or check. The Chapter 13 Trustee's office cannot accept cash payments or personal checks.
You may find it easier to have your employer deduct your plan payments from your paycheck. This is strictly voluntary. However, if you fall behind in your plan payments, the judge may order your employer to deduct your plan payments from your paycheck. It is important that both you and your employer understand that such an order is not a garnishment. If your employer has any questions, he or she should contact your employer's legal counsel. Be sure to notify the Trustee if you change or terminate your employment.
It is very important to contact your attorney if you ever expect to miss a payment due to layoff, medical disability, etc. If you are temporarily out of work, injured, or otherwise unable to make the payments required under the Chapter 13 plan, the Court may upon proper application allow you to suspend payments for a period of time. If it appears that your inability to make the required payments will continue for an extended period, you may be permitted to amend your plan, or the case may be dismissed or converted to Chapter 7. Remember -- the Trustee's office has no authority to let you miss a payment or allow you to pay less than your plan requires. Only the judge can make such a decision. Your lawyer can ask the judge to change the requirements of your plan if you feel that you cannot meet the obligations of your plan.
If you are ever in a position to increase your plan payments to the Trustee, you should contact your attorney for advice on prepaying your plan payments. You may send extra monthly payments to the Trustee, however, at any time. If you want to simply pay-off your plan early you may do so but call your attorney first.
Federal bankruptcy law allows the debtor to either dismiss a Chapter 13 case or to convert it to Chapter 7 at any time, unless your case has previously been converted from another chapter of the Bankruptcy Code. No one can force you to remain under a Chapter 13 plan if you do not wish to remain. If you desire to stop your case, contact your attorney.
However, if you simply stop making the Chapter 13 payments, any creditor in your case may ask the Court to dismiss your case. The Trustee will ask the Court to dismiss your case or place you on payroll deductions if:
- you fail to make your first payment(s)at the First Meeting of Creditors; and/or
- if you fail to make your required payments regularly during any months of your plan.
You should understand that a dismissal will reactivate all unpaid or disputed debts, all interest, finance charges, legal fees, all late charges not allowed by the Bankruptcy Court, and all debts of creditors who did not file their claims. Consider also that you will be forced to deal with those creditors on their terms, not yours or the Court's.
The Trustee's office will send you a yearly report of what has been paid to all your creditors. Be sure to review this report carefully and contact your attorney immediately if you have any questions or concerns. The report will list the creditor's claim amount and the amount paid to date to each of your creditors. The balance due on your plan is noted at the top of the report. Also, it is possible that one or more of your creditors is receiving interest and therefore the balance will change from month to month. The balance due is, therefore, only an approximate figure.
Unsecured creditors must file their claim with the Chapter 13 Trustee within 90 days after the first date set for the First Meeting of Creditors in order for their claims to be allowed. Government agencies have 180 days from the date of filing to file their claims. If an unsecured creditor fails to file their claim within this time period, the Trustee will bring a motion objecting to the late claim. If the claim is disallowed or not filed, then the creditor will not be paid by the Trustee and the debt will be discharged or canceled upon the completion of the plan.
A secured creditor can file a claim at any time while your case is open. A creditor must file a claim in order to be paid. The Trustee pays the amount claimed by the creditor, not the amount you state in your petition. If you disagree with the creditor's claim amount, you should contact your attorney. The debtor may file a claim on behalf of a creditor if he or she wishes to do so. A creditor may file an amended claim increasing or decreasing the claim amount at any time.
The money which you pay to the Trustee is used to pay expenses of administration, including payments to your attorney, and payments to your creditors. So that you will have some idea as to how the creditors are paid, you should understand that there are three (3) basic types of claims: priority (such as tax claims), secured (holding liens on property) and unsecured (consumer debt with no liens on property). Generally, your Trustee will pay secured creditors first, then administrative costs, then priority and finally unsecured.
Creditors not listed by you when you filed can create some potential problems. There are two (2) kinds of unlisted creditors: those who were owed money at the time of your filing but were forgotten "unlisted creditors" and those creditors who have a bill that was incurred after you file:post-petition creditors". If you find an unlisted creditor, you should let your lawyer know the details immediately.
The Trustee pays creditors the amount listed on their proofs of claim. If you disagree with the amount a creditor claims you owe then contact your attorney.
You may find yourself in a situation where you need to incur additional debt after you have filed your Chapter 13 plan. The following are the guidelines on incurring additional credit provided by the Bankruptcy Code:
- the debt must be for consumer debt and "for a property or services necessary for the debtor's performance under the plan";
- you must be able to prove you have the ability to pay the debt; and
- the Court must approve or deny such additional credit. Court approval requires the filing of a motion and notice to your creditors. If you wish to secure such credit, contact your attorney.
Your credit rating during and after completion of Chapter 13 will ultimately be based upon the personal opinion of any credit-grantor who looks over your credit record. Your credit record is a record of all your past credit performances. This record is made available to a creditor, and he or she makes up his or her own mind, by his or her own standards, as to whether or not he or she wants to grant credit to you.
Your bankruptcy will remain on your credit report anywhere from 7 to 10 years, depending on the credit reporting agency's policy. The maximum time it can be reported is 10 years.
Once enough money has been paid to the Trustee to complete all of your required payments, the Trustee will begin the process of closing your case. The closing process normally takes 6 to 8 weeks and is completed in the following order:
- Court Audit. The Trustee's office verifies that all claims filed in your case were paid correctly and all court orders were property administered. If any problem is discovered, you and your attorney are notified.
- Stop Payment. The Trustee's office directs you or your employer to stop making plan payments. This will not be done until after the court audit is completed successfully.
- Final Report. The Trustee's office prepares a final report for the judge.
- Court Date. The Trustee schedules your case for final review by the judge. You do not have to appear for this final hearing.
- Case Discharged. The judge signs an order discharging you from your scheduled debts.
- Notice of Discharge. The Trustee sends a notice to you, to your attorney and to your creditors. This tells you when your case was discharged by the judge.
- Refund. After the judge discharges your case, you receive a refund from the Trustee if there is money remaining in your case.
You and your attorney will both receive copies of the discharge order. Approximately four to six weeks after the judge has discharged your case, your discharge papers will also be available at the courthouse. This legal document states that you have been discharged from your scheduled debts. The Trustee will not have copies of your discharge papers. The courthouse is located at:
Charles R. Jonas Federal Bldg.
401 West Trade Street
Charlotte, NC 28202
If you subsequently lose or misplace your discharge order, you may obtain a certified copy from the court. However, the Bankruptcy Court does not take requests for copies over the phone. Requests may be in writing in care of the correspondence department or made in person. If you go in person, you must have your bankruptcy case number, picture identification and money (50 cents per page) for photocopies.
Make several copies of your discharge papers, and send copies to the three major credit bureaus:
TRW Consumer Assistance
P.O. Box 2350
Chatsworth, CA 91313-2350
Transunion Credit Information Co.
c/o Consumer Relations
8200 E. 32nd Street N.
Wichita, KS 67226
(312) 408-1050 for information
P.O. Box 105873
Atlanta, GA 30348
Fax (404) 612-3150
When a creditor has had his claim paid by Chapter 13, whether partially or in full, he should, and usually does, send the "paid-