Introduction to Bankruptcy Law

, by Frey, Martin A.; Frey, Phyllis H.; Swinson, Sidney K.

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ISBN: 9780766820364 | 076682036X
Cover: Paperback
Copyright: 7/23/2004

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The authors of this publication have taken a practical approach to teaching the intricacies of bankruptcy. To promote reader comprehension, they employ step-by-step explanations and flow charts of each type of filing, supporting case examples, challenging problems to address, and the definition of new terms as they are introduced. To further enhance learning, the roles of the various parties involved in the process are described in detail, particularly the role of the paralegal. From fact gathering and interfacing with clients, to the preparation of various official forms, paralegals will come to understand their role and those of others in handling bankruptcy cases. The most up-to-date official bankruptcy forms with detailed explanations for completing them are contained within the publication, as are debtor and creditor client questionnaires. Book jacket.

Table of Exhibits

Table of Cases

xxii

Table of Statutes and Rules

xxiii

Preface

xxxi

The Evolution of Bankruptcy Law

(8)

Brief History of Modern Bankruptcy Law

The Appearance of Bankruptcy in Early English Law

(1)

Treatment of Bankruptcy in the United States Constitution

(1)

Early American Bankruptcy Statutes

(1)

The Bankruptcy Act of 1800

(1)

The Bankruptcy Act of 1841

(1)

The Bankruptcy Act of 1867

(1)

The Bankruptcy Act of 1898

(1)

The Bankruptcy Reform Act of 1978

(1)

Amendments to the Bankruptcy Reform Act of 1978

(2)

Future Bankruptcy Reform

(2)

The Dual Nature of Bankruptcy as a Remedy for Both Creditors and Debtors

Bankruptcy Law and Where to Find It

(20)

The Bankruptcy Code

The Universal Chapters

(1)

General Provisions

(2)

Case Administration

(1)

Creditors, Debtor, and the Estate

(1)

The Operative Chapters

(1)

Liquidation

(1)

Adjustment of Debts of a Municipality

(1)

Reorganization

(1)

Adjustment of Debts of a Family Farmer with Regular Annual Income

(1)

Adjustment of Debts of an Individual with Regular Income

(1)

The Federal Rules of Bankruptcy Procedure and Official Forms

(1)

The Local Rules

(1)

District Court Rules

(1)

Bankruptcy Court Rules

(2)

Bankruptcy Law Cases

Secondary Authority

Legislative History

(1)

Digests

(1)

Loose-leaf Services

(1)

Treatises

(1)

Legal Periodicals

(1)

American Law Reports

(1)

Legal Encyclopedias

(1)

Internet Resources

(2)

The Cast of Characters and Their Roles in the Bankruptcy Process

(21)

The Debtor, the Debtor's Attorney, and the Paralegal

The Debtor

(1)

The Debtor's Attorney

(1)

The Paralegal

(2)

The Bankruptcy Petition Preparer

The Creditors and Other Parties in Interest

Creditors

(1)

Creditors Holding Secured Claims

(3)

Creditors Holding Unsecured Priority Claims

(1)

Creditors Holding Unsecured Nonpriority Claims

(1)

Other Parties in Interest

(1)

Equity Security Holders

(1)

Indenture Trustees

(1)

Statutory Lienholders

(1)

Lessors

(1)

Governmental Regulatory Authorities

(1)

The Administrative Office of the United States Courts

The Bankruptcy Judge and Staff

The Bankruptcy Judge

(1)

The Judge's Law Clerk, Judicial Assistant, and Courtroom Deputy

(1)

The Court Reporter

(1)

The Office of the Clerk of the Bankruptcy Court

The Bankruptcy Court Clerk

(1)

The Deputy Clerks

(1)

The United States Trustees, Private Trustees, and Examiners

The United States Trustees

(1)

Private Trustees

(1)

The Trustee Panel

(1)

Eligibility to Serve as a Trustee

(1)

Selection and Qualification

(1)

Standing Trustees

(1)

Other Trustees

(1)

Paralegals

(1)

Examiners

(1)

Information Gathering, Analysis, Counseling, and Drafting

(38)

The Debtor-Client

Information Gathering

(13)

Analysis: Nonbankruptcy or Bankruptcy

(1)

Alternatives to a Bankruptcy Filing

(1)

Negotiation

(3)

Consolidation Loan

(1)

Credit Counseling

(1)

Assignments for the Benefit of Creditors

(1)

Bankruptcy Choices

(1)

Liquidation

(2)

Municipalities

(1)

Reorganization

(1)

Adjustment of Debts of a Family Farmer with Regular Annual Income

(1)

Adjustment of Debts of an Individual with Regular Income

(1)

Counseling

(1)

Drafting of Bankruptcy Forms

(1)

The Creditor-Client

The Causes of the Creditor's Distress

(1)

Information Gathering

(1)

Analysis: If the Debtor Has Filed Bankruptcy

(1)

If the Debtor Has Filed a Chapter 7 Case

(1)

If the Debtor Has Filed a Chapter 11 Case

(1)

If the Debtor Has Filed a Chapter 12 Case

(1)

If the Debtor Has Filed a Chapter 13 Case

(1)

Analysis: Alternatives If the Debtor Has Not Filed Bankruptcy

(1)

Private Alternative

(1)

State Court Alternatives

(1)

Prejudgment Garnishment

(1)

Attachment

(1)

Receivership

(1)

UCC § 2--702

(1)

Replevin

(1)

Self-Help Repossession

(1)

Disposition of Collateral

(1)

Retention of Collateral

(1)

Cognovit Judgment

(1)

Judgment Lien

(1)

Execution Lien

(1)

Execution Sale

(1)

Creditor's Bill

(1)

Supplementary Proceedings

(1)

Postjudgment Garnishment

(1)

Fraudulent Conveyance

(1)

Consensual Lien

(1)

Equitable Lien

(1)

Involuntary Bankruptcy Choices

(1)

Involuntary Chapter 7---Liquidation

(1)

Involuntary Chapter 11---Reorganization

(1)

Counseling

(1)

Counseling the Creditor-Client

(1)

Drafting Bankruptcy Forms

(1)

The Debtor-Client in an Involuntary Bankruptcy

Information Gathering

(1)

Analysis

(1)

Counseling

(2)

The Voluntary Chapter 7 Bankruptcy (Liquidation)

(210)

The Initiation of a Chapter 7 Case

The Filing of the Petition

The Debtor's Petition (Official Form No. 1)

103

(9)

The Filing Fee

112

(3)

The Clerk's Notice

115

(2)

Corporate Resolution Authorizing Filing of Chapter 7

117

(1)

Disclosure of Attorney's Compensation Statement

118

(3)

The List of Creditors

121

(1)

Schedules (Official Form No. 6)

122

(1)

Schedule A: Real Property

122

(3)

Schedule B: Personal Property

125

(10)

Schedule C: Property Claimed as Exempt

135

(2)

Schedule D: Creditors Holding Secured Claims

137

(5)

Schedule E: Creditors Holding Unsecured Priority Claims

142

(6)

Schedule F: Creditors Holding Unsecured Nonpriority Claims

148

(4)

Schedule G: Executory Contracts and Unexpired Leases

152

(2)

Schedule H: Codebtors

154

(2)

Schedule I: Current Income of Individual Debtor(s)

156

(3)

Schedule J: Current Expenditures of Individual Debtor(s)

159

(4)

The Schedule of Current Income and Current Expenditures of a Partnership or Corporation

163

(3)

Declaration Concerning Debtor's Schedules

166

(2)

Statement of Financial Affairs

168

(22)

Statement of Intention If the Debtor Is an Individual with Consumer Debts

190

(2)

Debtor's Duty to Supplement the Schedules

192

(1)

Debtor's Right to Amend the Petition, Lists, Schedules, and Statements

193

(1)

The Significance of Filing a Petition

The Order for Relief

194

(1)

The Estate Is Created

194

(1)

Property of the Estate

194

(4)

Location of Property

198

(1)

Property Acquired after Filing the Petition

198

(2)

Contractual Provisions Limiting Transferability of Property

200

(1)

Possession and Control of Property of the Estate

200

(1)

Exemptions

201

(1)

Exemptions under the Bankruptcy Code: State vs. Federal Exemptions

201

(5)

Converting Nonexempt Property to Exempt Property

206

(1)

Waiver of Exemptions and Waiver of Avoidance Powers

206

(1)

The Automatic Stay

207

(6)

The Appointment and Powers of an Interim Trustee

Abandon Property of the Estate

213

(1)

Abandonment by the Trustee

213

(1)

A Party in Interest Can Force the Trustee to Abandon

214

(1)

Abandoned by Being Scheduled but Not Administered

214

(1)

Assume or Reject Executory Contracts

214

(1)

Avoiding Transfers

215

(1)

Avoiding Unperfected Security Interests

215

(5)

Avoiding Claims That an Actual Creditor Can Avoid under State Law

220

(2)

Avoiding Statutory Liens That Arise on the Debtor's Bankruptcy or Insolvency

222

(1)

Avoiding Prepetition Transfers of Property of the Estate to Creditors That Are Voidable Preferences

222

(4)

Avoiding Prepetition Transfers of Property of the Estate That Are Fraudulent under the Bankruptcy Code

226

(2)

Avoiding Postpetition Transfers of Property of the Estate Unless They Are Authorized by the Bankruptcy Code or by the Bankruptcy Court

228

(2)

Proofs of Claim and Proofs of Interest

Creditors' and Indenture Trustees' Proofs of Claim

230

(1)

Equity Security Holders' Proofs of Interest

230

(4)

Motions and Complaints after the Order for Relief

Motions

234

(1)

Motions by the Debtor

234

(1)

Motion to Convert to a Chapter 11, 12, or 13

234

(1)

Motion to Dismiss the Case

234

(1)

Motion for a Change of Venue

234

(3)

Motion to Enforce the Automatic Stay

237

(1)

Motion to Avoid a Judicial Lien

238

(4)

Motions by a Party in Interest

242

(1)

Motion for Relief from the Automatic Stay

242

(3)

Motion to Dismiss the Case

245

(1)

Motion for Abstention by the Court

245

(1)

Motion for a Change of Venue

245

(1)

Motion for Disallowance of a Claim

245

(1)

Motion for Examination of Any Entity

245

(2)

Motion by the United States Trustee to Dismiss the Case

247

(4)

Motion by the Court to Dismiss the Case

251

(1)

Complaints

252

(1)

Complaints by a Creditor

252

(1)

Complaint Objecting to Debtor's Discharge

252

(3)

Complaint Objecting to the Dischargeability of a Debt

255

(7)

Complaint by the Trustee or the United States Trustee Objecting to Debtor's Discharge

262

(1)

Complaint by the Trustee to Avoid Prepetition and Postpetition Transfers

262

(1)

Complaint by the Debtor Objecting to the Dischargeability of a Debt

262

(8)

Order and Notice of Chapter 7 Bankruptcy Filing, Meeting of Creditors, and Fixing of Dates

Objections by a Party in Interest to Debtor's Claim of Exemptions

Meeting of Creditors (The Section 341 Meeting) and Meeting of Equity Security Holders

The Meeting of Creditors

270

(1)

Examination of the Debtor

270

(1)

Election of a Trustee

270

(1)

The Meeting of Equity Security Holders

271

(1)

Redemption, Discharge and Reaffirmation

Redemption

271

(1)

Discharge and Reaffirmation

271

(1)

Revocation of Discharge

272

(6)

Distribution of the Property of the Estate

Priority Claims

278

(1)

Administrative Expenses

278

(1)

Extension of Credit in an Involuntary Case

278

(1)

Wages, Salaries, or Commissions

278

(1)

Contributions to Employee Benefit Plans

279

(1)

Farmer and Fishermen Claims

279

(1)

Consumer Deposits

279

(1)

Alimony, Maintenance, and Support Claims

279

(1)

Certain Governmental Tax Claims

279

(1)

Insured Depository Institution Claims

280

(1)

Nonpriority Claims

280

(1)

Timely Filed Unsubordinated General Unsecured Claims and Tardily Filed Unsecured Claims Where Creditor Did Not Have Notice but Proof of Claim Filed in Time to Make Payment

280

(1)

Other Tardily Filed Unsecured Claims

280

(1)

Penalty-Type Claims

280

(1)

Interest on Priority and Nonpriority Prepetition Claims

280

(1)

Debtor

280

(1)

Closing the Case

Trustee's Final Report and Proposed Distribution

281

(1)

Trustee's Final Account after Distribution and Request for Discharge

281

(1)

Closing the Case

281

(13)

After the Case Is Closed

Amending the Case without Reopening the Case

294

(1)

Reopening a Closed Case

294

(4)

The Chapter 13 Bankruptcy (Adjustment of Debts of an Individual with Regular Income)

298

(46)

The Initiation of a Chapter 13 Case

The Chapter 13 Plan

Contents of a Chapter 13 Plan

308

(1)

Mandatory Provisions

308

(1)

Permissive Provisions

309

(1)

A Sample Chapter 13 Plan

309

(9)

The Debtor's Payments under the Plan

318

(1)

Modification of the Plan before Confirmation

318

(3)

The Filing of the Petition

The Significance of Filing a Petition

Possession and Control of Property of the Estate

321

(1)

Operation of the Debtor's Business

321

(1)

Exemptions

321

(2)

Appointment and Duties of a Chapter 13 Trustee

Motions and Complaints after the Order for Relief

Motions

323

(2)

Complaints

325

(19)

The Clerk's Notice

Meeting of Creditors (The Section 341 Meeting)

Hearing on Confirmation of the Plan

Trustee's Distribution of Payments under the Plan

Modification of the Plan after Confirmation

Revocation of Order of Confirmation

Discharge

Revocation of the Discharge

Closing the Case and Proceedings after the Case Is Closed

The Chapter 12 Bankruptcy (Adjustment of Debts of a Family Farmer with Regular Annual Income)

344

(44)

The Initiation of a Chapter 12 Case

The Chapter 12 Plan

Contents of a Chapter 12 Plan

357

(1)

Mandatory Provisions

357

(1)

Permissive Provisions

358

(1)

A Sample Chapter 12 Plan

358

(1)

The Debtor's Payments under the Plan

358

(5)

Modification of the Plan before Confirmation

363

(5)

The Filing of the Petition

The Significance of Filing a Petition

Possession and Control of Property of the Estate: The Debtor in Possession

368

(1)

Operation of the Debtor's Business

368

(1)

Exemptions

369

(2)

Appointment and Duties of a Chapter 12 Trustee

Motions and Complaints after the Order for Relief

Motions

371

(3)

Complaints

374

(14)

The Clerk's Notice

Meeting of Creditors (The Section 341 Meeting)

Hearing on Confirmation of the Plan

Trustee's Distribution of Payments under the Plan

Modification of the Plan after Confirmation

Revocation of Order of Confirmation, Conversion, or Dismissal

Discharge

Revocation of the Discharge

Closing the Case and Proceedings after the Case Is Closed

The Voluntary Chapter 11 Bankruptcy (Reorganization)

388

(70)

The Initiation of a Chapter 11 Case

The Chapter 11 Petition and the Significance of Filing a Chapter 11 Petition

The Filing of the Chapter 11 Petition

395

(6)

The Significance of Filing a Petition

401

(1)

Possession and Control of Property of the Estate

401

(1)

Operation of the Debtor's Business

402

(1)

Use of Cash Collateral

402

(1)

Adequate Protection

402

(1)

Employment of Professionals

403

(1)

Obtaining Credit

403

(1)

Utility Services

404

(1)

Shedding Burdensome Collective Bargaining Contracts

404

(1)

Dealing with Pending and Future Litigation

404

(1)

Evidence of Debtor in Possession (DIP) Status

405

(1)

Exemptions

405

(2)

The Chapter 11 Plan

Strategies Utilized in Reorganization Plans

407

(6)

Contents of a Chapter 11 Plan

413

(1)

Mandatory Provisions

413

(1)

Permissive Provisions

414

(1)

A Sample Chapter 11 Plan

415

(1)

Modification of a Chapter 11 Plan

415

(7)

Chapter 11 Plan Filed by Parties Other Than the Debtor

422

(13)

A Disclosure Statement or Evidence Showing Compliance with 11 U.S.C.A. § 1126(b)

Order and Notice of Chapter 11 Bankruptcy Filing, Meeting of Creditors, and Fixing of Dates

Motions and Complaints

Motions

435

(1)

Complaints

435

(23)

Appointment of a Committee of Unsecured Creditors and a Committee of Equity Security Holders

Meeting of Creditors (The Section 341 Meeting) and Meeting of Equity Security Holders

Hearing on the Disclosure Statement

Hearing on Confirmation of the Plan

Effect of Confirmation of the Plan

Distribution under the Plan and Reporting by Debtor in Possession or Chapter 11 Trustee

Revocation of an Order of Confirmation

Final Report and Final Decree

Selecting the Appropriate Type of Bankruptcy Filing

458

(15)

Eligibility

Selecting the Chapter If the Debtor Is Eligible under Multiple Chapters

The Business Debtor

464

(1)

Choosing to Liquidate under Chapter 7 or Reorganize under Chapter 11

464

(1)

Choosing to Liquidate under Chapter 7 or Liquidate under Chapter 11

465

(1)

Choosing to Reorganize under Chapter 11 or Adjust Debt under Chapter 12 or 13

465

(2)

The Nonbusiness Debtor

467

(1)

Choosing to Liquidate under Chapter 7 or Adjust Debt under Chapter 13

467

(5)

Choosing to Liquidate under Chapter 7 or Reorganize under Chapter 11

472

(1)

Choosing to Reorganize under Chapter 11 or Adjust Debt under Chapter 13

472

(1)

The Involuntary Bankruptcy: Chapter 7 or Chapter 11

473

(20)

Limitations on Filing an Involuntary Petition

Debtors Who May Be Subject to an Involuntary Petition

474

(1)

Requirements of a Petitioning Creditor

474

(11)

Flow Chart for the Involuntary Petitions

The Filing of the Creditors' Petition

The Significance of Filing a Petition

The Order for Relief, the Bankruptcy Estate, and the Automatic Stay

485

(1)

Appointment of a Trustee

485

(1)

Gap Period Creditors

485

(1)

The Debtor's Answer

Hearing and Disposition of an Involuntary Petition

The Order for Relief

486

(4)

Dismissal of an Involuntary Petition

490

(3)

Appendix A Interview Questionnaire for the Debtor-Client

493

(45)

Appendix B Interview Questionnaire for the Creditor-Client

538

(2)

Appendix C Chapter 9--Debts of Municipalities

540

(2)

Glossary

542

(8)

Index

550

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Introduction to Bankruptcy Law

Summary

Author Biography

Table of Contents

Supplemental Materials