FLINT BANKRUPTCY SERVICE ARE OFFERED BY FLINT BANKRUPTCY LAWYER TERRY BANKERT 235-1970

FLINT BANKRUPTCY SERVICE ARE OFFERED BY FLINT BANKRUPTCY LAWYER TERRY BANKERT 235-1970

Genesee County Bankruptcy cases in Michigan are governed by the U.S Bankruptcy Code, the Federal Rules of Bankruptcy Procedure, and detailed local rules. Cases are adjudicated by Genesee County Bankruptcy judges appointed in each district court. Genesee County Bankruptcy judges may hear and decide all core proceedings, i.e., those that are integral to the core Genesee County Bankruptcy function of restructuring Flint or Genesee County debtor-creditor rights. However, in noncore proceedings, the Genesee County Bankruptcy judge may only submit proposed findings of fact and conclusions of law to the district court. Appeals from final orders and judgments of Genesee County Bankruptcy courts are heard by federal district courts or Genesee County Bankruptcy appellate panels (BAPs).

For additional information contvat Bankruptcy Lawyer Terry Bankert http://www.attorneybankert.com


A Genesee County Bankruptcy case is commenced when a Flint or Genesee County debtor files a voluntary petition or is forced into Genesee County Bankruptcy by an involuntary petition.

When you seek Genesee County Bankruptcy relief, we must select the chapter best suited to your needs. In most cases involving individuals, that will be either Chapter 7 or Chapter 13, unless you are a family farmer or family fisherman eligible for relief under Chapter 12. Involuntary petitions may be filed under Chapters 7 and 11; there is no such thing as an involuntary Chapter 12 or 13 petition. Farmers and charitable corporations may not be forced into involuntary Genesee County Bankruptcy.


Once a Genesee County Bankruptcy petition is filed and the case is commenced, a new entity called the estate is created. The estate consists of all of the Flint or Genesee County debtor’s interests in real and personal property as of the date the petition is filed. The Flint or Genesee County debtor, his or her trustee, and their attorneys are the persons primarily responsible for administering this estate.


The Flint or Genesee County debtor must cooperate with the trustee in the execution of the trustee’s statutory duties, file certain documents, and attend and submit to examination under oath at the creditors’ meeting. In Chapter 7, 12, and 13 cases, the U.S. trustee appoints a trustee to administer the assets of the Flint or Genesee County debtor for the benefit of creditors.


The Chapter 7 trustee’s primary duty is to reduce all nonexempt property to cash as quickly as possible and distribute the money to creditors. Chapter 12 and 13 trustees are primarily responsible for analyzing proposed payment plans and ensuring that Flint or Genesee County debtors comply with the terms of their confirmed plans, especially the payment provisions.

Exempt property is not subject to distribution by the trustee; it forms the basis of the individual Flint or Genesee County debtor’s fresh start.

Once the Genesee County Bankruptcy petition is filed, the Flint or Genesee County debtor’s exempt property, and property of the estate are all protected by automatic stay provisions.

This protection gives the Flint or Genesee County debtor a breathing spell from his or her creditors by stopping all collection efforts, harassment, and foreclosure actions. However, criminal proceedings and actions taken by governmental units to enforce their police or regulatory power may continue.


Once the trustee or Flint or Genesee County debtor-in-possession collects and liquidates the nonexempt property of the estate, the resulting proceeds are distributed to holders of claims.

Claims are classified as secured, unsecured, or priority. A secured claim is one that has a valid and perfected lien or a security interest in property of the estate as collateral. Unsecured claims are those not collateralized by any property of the estate or resulting from the undersecured status of a secured creditor.

The aim of a Chapter 7 Genesee County Bankruptcy case is to give the honest Flint or Genesee County debtor a fresh start in life by discharging most of his or her debts and allowing the Flint or Genesee County debtor to retain his or her exempt property. The entry of a discharge order relieves the Flint or Genesee County debtor of all personal liability on any debts dischargeable under the Bankruptcy Code and acts as an injunction against creditors’ actions to collect discharged debts.

FLINT BANKRUPTCY SERVICE ARE OFFERED BY FLINT BANKRUPTCY LAWYER TERRY BANKERT 235-1970

Sphere: Related Content

NEED A LAWYER ? CALL FLINT BANKRUPTCY ATTORNEY TERRY BANKERT 810-235-1970

File Flint Chapter Seven Bankruptcy you will not be alone. Call 235-1970

September 23, 2012

HAVING PROBLEMS PAYING YOUR DEBTS?

FLINT BANKRUPTCY Lawyer Terry R. Bankert 235-1970

Because of our poor economy nationally, and in Michigan, many families have economic problems.

Do you?

Are you having problems paying your debts?

Is your family threatened with garnishment, foreclosure or repossession?

If yes you are not alone.
see  http://goodmorningflint.blogspot.com/2012/09/having-problems-paying-your-debts-flint.html

We are a debt relief agency helping you as a Flint Bankruptcy Lawyer. We will help you   file and get debt relief.

Bankruptcy is a way to deal with your  financial problems , get a fresh start and care for your family.

You Did know you have the right under federal law to file for bankruptcy relief from your creditors just like General Motors, Big Banks and Wall Street..

The theory of Bankruptcy is that it is a legal proceeding in which a person can get a fresh financial start. Do you need as fresh start?

First try to pay your bills before filing bankruptcy because you can do so only once every six years and it is the right thing to do.

In most cases, you will want to save this valuable option until you really need it. Also, you may not need to file bankruptcy even though creditors are threatening you because you may have no nonexempt property or you wages are too high.


Just like Wall Street got their Fresh start a chapter seven Flint Bankruptcy it is your fresh start.

http://dumpmycreditors.wordpress.com/2011/11/15/your-persoanl-wall-street-type-bailout-a-chapter-sebven-bankruptcy-810-235-1970/

Some things bankruptcy can do:

Eliminate the legal obligation to pay most or all of your debts. This is called a “discharge” of debts.

Stop foreclosure of your home and allow you to catch up on missed payments.

Stop repossession of a car or other property, or, in some situations, force the creditor to return property even after it has been repossessed.

Stop wage garnishments.

Stop debt collection harassment.

Restore or prevent termination of utility service for nonpayment of previous bills (you will probably have to pay a deposit, but the deposit cannot be more than 1-1/2 to 2 times your previous regular bills according to the Arizona Administrative Code).

Get your drivers license back if it has been suspended because you didn’t pay court-ordered damages for a driving accident (unless you were driving under the influence of drugs or alcohol).

Some things bankruptcy can’t do.

Eliminate certain rights of secured creditors. Some examples of secured debts are car loans and home mortgages. You can force secured creditors to take payments over time, but generally, you cannot keep the collateral unless you continue to pay the debt.

Discharge debts that arise after the bankruptcy has been filed.

Discharge certain types of debts, such as child support, alimony (spousal maintenance), certain other debts related to divorce, most student loans, court restitution orders, criminal fines, and most taxes.

Eliminate the obligation of a co-signer on your loan in most cases.

Chapter Seven Bankruptcy is known as a “fresh start” bankruptcy, or “liquidation”. Your debts are discharged (canceled), but you must give up any nonexempt property to the trustee to pay to your creditors. You can keep secured property if you are current on the payments and continue making the payments regularly.

When you file for bankruptcy you will not be alone.

http://occupyflintlegal.wordpress.com/2012/09/11/when-you-file-for-chapter-seven-bankruptcy-you-will-not-be-alone-810-235-1970/

In Chapter 7 bankruptcy, the trustee must take your nonexempt property and use it to pay your creditors.Most debtors in Genesee County because of our loss of residential value keep all of their possessions that are not encumbered by a loan or mortgage.

If you have property, which is non-exempt, you could sell it before filing bankruptcy and use the money to purchase things, which are exempt; such are food, furniture, or clothing.

However, you cannot give property away to friends or relatives, and have them give it back to you after the bankruptcy.

Any transfers of property without receiving fair value for it within one year before filing bankruptcy are called a fraudulent transfer.

The property could be taken by the bankruptcy court and sold to pay some of your debts.

If the court finds you have been dishonest in your bankruptcy, you could be denied your discharge. You could also be charged with federal or state crimes, which carry serious fines and jail sentences.

Also, you cannot prefer one creditor over another by making payments on the debt within 90 days before filing bankruptcy (one year if the person paid is an “insider” (family, friend, etc.)

If you do so, the bankruptcy court can take that money away from the person you paid. This is to insure that all creditors are treated equally. This does not apply, however, to regular monthly payments such as your car payment, house payment, rent, utilities.

Call my office at 810-235-1970 andm make a free initial appointment so we can continue this discussion to gice you a fresh financial start.

 

Sphere: Related Content

HAVING PROBLEMS PAYING YOUR DEBTS? FLINT BANKRUPTCY 235-1970

Because of our poor economy nationally and in Michigan many families have economic problems. Do you? Having  problems paying your debts? Is your family  threatened with garnishment, foreclosure or repossession? If yes you are not alone. see http://goodmorningflint.blogspot.com/2012/09/having-problems-paying-your-debts-flint.html

We are a debt relief agency helping you as a Flint Bankruptcy Lawyer h file and get relief.

Bankruptcy is a way to deal with these problems.

You Did  know you have the right under federal law to file for bankruptcy relief from your creditors.

The theory of Bankruptcy is that it is a legal proceeding in which a person can get a fresh financial start. Do you need as fresh start?

Try to pay your bills before filing bankruptcy because you can do so only once every six years. In most cases, you will want to save this valuable option until you really need it. Also, you may not need to file bankruptcy even though creditors are threatening you because you may have no nonexempt property or wages.

This means you have nothing the creditors can take from you. You can't be put in jail for failing to pay your civil debts (other than fines or other court ordered amounts).

Some things bankruptcy can do:

• Eliminate the legal obligation to pay most or all of your debts. This is called a "discharge" of debts.
• Stop foreclosure of your home and allow you to catch up on missed payments.
• Stop repossession of a car or other property, or, in some situations, force the creditor to return property even after it has been repossessed.
• Stop wage garnishments.
• Stop debt collection harassment.
• Restore or prevent termination of utility service for nonpayment of previous bills (you will probably have to pay a deposit, but the deposit cannot be more than 1-1/2 to 2 times your previous regular bills according to the Arizona Administrative Code).
• Get your drivers license back if it has been suspended because you didn't pay court-ordered damages for a driving accident (unless you were driving under the influence of drugs or alcohol).

Some things bankruptcy can't do

• Eliminate certain rights of secured creditors. Some examples of secured debts are car loans and home mortgages. You can force secured creditors to take payments over time, but generally, you cannot keep the collateral unless you continue to pay the debt.
• Discharge debts that arise after the bankruptcy has been filed.
• Discharge certain types of debts, such as child support, alimony (spousal maintenance), certain other debts related to divorce, most student loans, court restitution orders, criminal fines, and most taxes.
• Eliminate the obligation of a co-signer on your loan in most cases.

Chapter Seven Bankruptcy  is  known as a "fresh start" bankruptcy, or "liquidation". Your debts are discharged (canceled), but you must give up any nonexempt property to the trustee to pay to your creditors. You can keep secured property if you are current on the payments and continue making the payments regularly.

When you file for bankruptcy you will not be alone.
http://occupyflintlegal.wordpress.com/2012/09/11/when-you-file-for-chapter-seven-bankruptcy-you-will-not-be-alone-810-235-1970/

In Chapter 7 bankruptcy, the trustee must take your nonexempt property and use it to pay your creditors.Most debtors in Genesee County because of our loss of residential value keep all of their possessions that are not encumbered by a  loan or mortgage.  

If you have property, which is non-exempt, you could sell it before filing bankruptcy and use the money to purchase things, which are exempt; such are food, furniture, or clothing. However, you cannot give property away to friends or relatives, and have them give it back to you after the bankruptcy. Any transfers of property without receiving fair value for it within one year before filing bankruptcy are called a fraudulent transfer. The property could be taken by the bankruptcy court and sold to pay some of your debts. If the court finds you have been dishonest in your bankruptcy, you could be denied your discharge. You could also be charged with federal or state crimes, which carry serious fines and jail sentences.

Also, you cannot prefer one creditor over another by making payments on the debt within 90 days before filing bankruptcy (one year if the person paid is an "insider" (family, friend, etc.) If you do so, the bankruptcy court can take that money away from the person you paid. This is to insure that all creditors are treated equally. This does not apply, however, to regular monthly payments such as your car payment, house payment, rent, utilities.

Sphere: Related Content

BANKRUPTY CHAPTER SEVEN COURT OPINION ON LANDLORD, RENT, SECURITY DEPOSIT BY FLINT BANKRUPTCY ATTORNEY TERRY BANKERT 235-1970

FEDERAL COURT ORDER REVERSING THE LOWER BANKRUPTCY COURT AND REMANDING ( SENDING IT BACK TO THE BANKRUPTCY COURT) FOR FURTHER PROCEEDINGS IN BANKRUPTCY COURT




I. BANKRUPTCY ISSUES





LANDLORD SAYS HE SHOULD NOT HAVE TO RETURN BANKRUPTY DEBTOR SECURITY DEPOSIT



Appellant challenges the Bankruptcy Court’s Order of May 26, 2011, compelling

him to return the full amount of security deposits paid by tenants Appellees Kristin

Zzz, Kelsea Zzz, and Cody Yyy in connection with the rental property located

at 274 E. St. Clair, Romeo, Michigan (the “Romeo property”). Appellees did not

respond to Appellant’s Brief, and the time to do so has passed.



FLINT BANKRUPTCY LAWYER 235-1970



This post by Flint Bankruptcy Attorney Terry R. Bankert , 235-1970, principally from the case cited below and for social media and SEO.. Bankert comments CAP or cited [trb] Read the entire original opinion and seek competent legal counsel before you rely on this content.



THE FEDERAL COURT TELLS THE BANKRUPTCY COURT IT WAS WRONG.



The Court REVERSES the Bankruptcy Court and REMANDS for further

proceedings consistent with this order.



II. FACTS OF THE CASE



A. Brief Background



THE CAUSE BEGAN AS A CHAPTER SEVEN BANKRUPTCY



On November 8, 2010, Appellant John Robert Iwanski filed for Chapter 7

bankruptcy jointly with his wife Kay Ellen Collins.



DEBTOR FELL BEHIND ON MORTGAGE PAYMENTS



Prior to filing for bankruptcy, Mr. Iwanski fell behind on mortgage payments for an investment property, the Romeo property.



THE HOME WAS FORECLOSED



On October 8, 2010, the Mortgagee bank foreclosed on the Romeo property.



HOMEOWNER FILED FOR BANKRUPTCY



Mr. Iwanski filed for bankruptcy on November 8, 2010, to protect himself from creditors,

including a potential deficiency owed to the mortgage creditor regarding the Romeo

property.



TENANTS REMAINED IN THE DEBTORS HOME



Appellees Cody Yyy, Kristin Zzz, and Kelsea Zzz (collectively, the

“Tenants”) continued to occupy the Romeo property after the foreclosure and Mr.

Iwanski’s bankruptcy filing.



TENANT HAD SIGNED A SIX MONTH LEASE



Mr. Iwanski had signed six-month leases with the Tenants

for the Romeo property in September 2010.



TENANTS LEASE EXPIRED THEY STAYED AS A HOLD OVER TENANT



After the expiration of the leases in March 2011, the Tenants remained at the Romeo property as month-to-month holdover tenants.



BANKRUPTCY DISCHARGE ON 02/06/11



Mr. Iwanski received his bankruptcy discharge on February 16, 2011.



04/08/12 REDEMPTION PERIOD EXPIRED



On April 8, 2011, the redemption period expired for the foreclosed Romeo property.



04/19/12 BANK FILED FOR RELIEF FROM STAY



Soon after, on April 19, 2011, the Mortgagee bank filed a motion for relief from the automatic stay to allow it to take possession of the Romeo property. The Tenants filed written responses to the motion.



The Bankruptcy Court scheduled the motion for hearing on May 16, 2011.



Mortgagee’s counsel, Mr. Iwanski’s counsel, and the Tenants appeared. However,

based on the fact that he was not opposing the motion, Mr. Iwanski did not attend.

Because Mr. Iwanski was not present, the Court adjourned the hearing to May 23, 2011.



B. May 23, 2011 Hearing



The Court held a hearing on May 23, 2011, to consider the motion of the

Mortgagee bank to lift the automatic stay.



All the parties who appeared at the May 16 hearing appeared at this hearing, plus Appellant Mr. Iwanski.





At the hearing, the Bankruptcy Court took no sworn testimony, and admitted no

evidence.



MOTION TO LIFT AUTOMATIC STAY WAS LIFTED



The Mortgagee’s motion to lift the automatic stay was not opposed and was

granted. In connection with the motion, the Court inquired into who was entitled to rents

due regarding the Romeo property after the sheriff sale but before the expiration of the

redemption period.



ARGUED MICHIGAN LAW SAYS FORMER OWNER HAS RIGHT TO RENT UNTIL REDEMPTION PERIOD EXPIRES



Mr. Xxx’s counsel and the Mortgagee’s counsel stated that they

had researched the issue, and that they agreed that under Michigan law the former

owner (i.e., Mr. Xxx) is entitled to all rents due until the expiration of the redemption

period. Tr. at 3.



TESTIMONY THAT TENANTS BEHIND ON RENT



At the hearing, Mr. Xxx stated that the Tenants were behind in their rent and

that eviction proceedings had been initiated in state court. Tr. at 13.



TENANTS DEMANDED SECURITY DEPOSIT BACK



He also stated that Tenants were asking for their security deposits back despite the fact that they were still occupying the premises. Tr. at 14.





Mr. Xxx stated that Tenants Kristin Zzz and Kelsey Zzz had last paid

$100 in March 2011 toward the monthly rent of $475, and that they had paid nothing for

April and May.



The Zzz Tenants denied these allegations, stating “there’s no past

due rent owed to [Mr. Xxx] at all,” and “we have receipts for all our rent.” Tr. at 12,

13.



SECURITY DEPOSIT RETURN DENIED



They also demanded refund of their security deposit of $712.50. Tr. at 17.

Tenant Cody Yyy said that he last paid rent in February 2011. Tr. at 20. He

said he did not pay because he was not aware who owned the building on account of

Mr. Xxx’s foreclosure. He also said he was entitled to return of his security deposit

in the amount of $787.50. Tr. at 17.



MICHIGAN LAW ON RENTS DISTRIBUTION TIMING



Mr. Xxx’s counsel admitted that under Michigan law Mr. Xxx is entitled to

rent only until the expiration of the redemption period on April 8, 2011. Tr. at 14. Any

rent owed after that date would be payable to the Mortgagee bank.



SECURITY DEPOSIT CAN BE USED FOR UNPAID RENT



However, he also maintained that under Michigan law, Mr. Xxx is entitled to apply the Tenants’ security deposits to unpaid rent. Tr. at 18. He mentioned that because there is unpaid rent for at least March and April, Mr. Xxx is entitled to apply the Tenants’ security deposits to the rent.



BANKRUPTCY COURT ORDERED RETURN OF FULL SECURITY DEPOSIT



At the end of the hearing, the Bankruptcy Court ruled: “Mr. Xxx, I hereby

order you to refund to these tenants their full security deposits within seven days . . . .”

Tr. at 21.



The Bankruptcy Court issued a one-sentence order on May 26, 2011,

compelling the return of the security deposits for the reasons stated on the record.



III. WHAT IS THE STANDARD OF REVIEW WHEN THE FEDERAL COURT REVIEWED THE BANKRUPTCY COURT



COURT WILL ASK WAS THERE CLEAR ERROR ON THE PARTY OF THE BANKRUPTCY JUDGE



The Court reviews the Bankruptcy Court’s findings of fact for clear error and its

conclusions of law de novo. Batie v. Investors Credit Corp., 995 F.2d 85, 88-89 (6th Cir.

1993). If the Bankruptcy Court’s factual findings are silent or ambiguous as to an

outcome determinative factual question, the district court may not engage in its own

factfinding but, instead, must remand the case to the Bankruptcy Court for the

necessary factual determination. Hardin v. Caldwell, 851 F.2d 852, 857 (6th Cir. 1988).



IV. THE PARTIES ARGUMENT



On appeal, Mr. Xxx argues that the Bankruptcy Court’s order ignores the fact

that he was entitled to apply security deposits to unpaid rent, and that he had no

obligation to return security deposits until 45 days after the termination of occupancy by

Tenants.



He also argues that the May 23, 2011 hearing involved a number of

procedural irregularities, including that the Bankruptcy Court ruled without any evidence because nobody at the hearing was sworn in, and there was no opportunity for cross examination or discovery. Therefore, he says the Court’s order lacks an evidentiary basis. This Court agrees.



V. THE FEDERAL COURT ANALYSIS



MORTGAGE HOLDER IN MICHIGAN STAYS IN PROPERTY UNTIL REDEMPTION PERIOD ENDS



Michigan law clearly states that a mortgagor is entitled to possession of the

mortgaged property, and all the benefits of possession, until the expiration of the

redemption period.



The Michigan Supreme Court says, “[T]he bank ha[s] no legal right

of possession during the [ ] redemption period. . . It has been the definite and

continuous policy of this State to save to mortgagors the possession and benefits of the

mortgaged premises, as against the mortgagees, until expiration of the period of

redemption.” Kubczak v. Chemical Bank & Trust Co., 575 N.W. 2d 745, 747-48 (Mich.

1998).



The benefits of possession include the right to collect rent. Bennos v.

Waderlow, 289 N.W. 267, 269 (Mich. 1939) (“[I]t is settled law that, until after the

expiration of the equity of redemption through foreclosure proceedings, a mortgagee is

not entitled to the rents and profits of the sold or mortgaged premises.”).





There is no dispute that the redemption period for the Romeo property expired on

April 8, 2011. Tr. at 15. There is also no dispute that the Tenants continued to occupy

the property as of this date, and, indeed, were still occupying the property as of the May

23, 2011 hearing. Therefore, Mr. Xxx is entitled to all rents due on the Romeo

property through April 8, 2011.



Additionally, under the Michigan Landlord and Tenant Relationship Act of 1972,

M.C.L. §§ 554.601 et seq., a security deposit may be used for “all rent in arrearage.” Id.

§ 554.607.



A landlord is also entitled to retain a security deposit for 45 days after

termination of the occupancy, and to begin an action for a money judgment against the

former tenants during that time. Id. § 554.613. The landlord may retain the portion of

the security deposit necessary to satisfy any money judgment against the tenant. Id.





Lastly, it appears that this matter may have been subject to mandatory

abstention by the Bankruptcy Court. See 28 U.S.C. § 1334. Mr. Xxx states that

eviction proceedings were ongoing in state court at the time of the Bankruptcy Court’s

order, but the Bankruptcy Court did not give him the opportunity to file a motion

requesting abstention.



Without making any factual findings or stating the legal basis for its ruling, the

Bankruptcy Court simply ordered Mr. Xxx to return Tenants’ security deposits within

seven days of its order.



The Bankruptcy Court’s order does not take into account clear

Michigan law which states that the mortgagor is entitled to all rent due until the

expiration of the redemption period, and that the mortgagor may apply money from a

security deposit to unpaid rent.



The Bankruptcy Court’s order is “silent or ambiguous as to an outcome

determinative factual question.” Caldwell, 851 F.2d at 857.



This Court remands this matter to the Bankruptcy Court to make the appropriate factual findings.



Specifically, the Bankruptcy Court must determine what rent, if any, was owed by Tenants to Mr. Xxx at the end of the expiration of the redemption period on April 8, 2011.



If the Bankruptcy Court determines that Tenants were in arrears as of that date, it must allow Mr. Xxx to apply the necessary portion of Tenants’ security deposits to the unpaid rent.



Additionally, the Bankruptcy Court must give Mr. Xxx the opportunity to file an

abstention motion before proceeding to adjudicate these matters.



VI. THE FEDERAL COURT CONCLUSION



The Bankruptcy Court’s Order of May 26, 2011, is REVERSED. The matter is

REMANDED for further proceedings. IT IS ORDERED.,S/Victoria A. Roberts Victoria A. Roberts United States District Judge



[1]



UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION,In Re: Chapter 7, John Robert Xxx, and, Case No. 10-74033, Kay Ellen Collins, Hon. Steven W. Rhodes,Debtors.

Case No. 11-12379,Appellant, Hon. Victoria A. Roberts,v.

Federal Home Loan Mortgage Corp., Cody Yyy, Kristin Zzz, and

Kelsea Zzz, Appellees.



[trb]

This post by Flint Bankruptcy Attorney Terry R. Bankert , 235-1970, principally from the case cited [1]. Bankert comments CAP or cited [trb] Read the entire original opinion and seek competent legal counsel before you rely on this content.

Sphere: Related Content

Bankruptcy in Flint Michigan

Your History of Bankruptcy Law


Did you kn ow.§1.1 Laws that provide for the distribution of a debtor’s property among creditors have been a part of civil jurisprudence since ancient times. Under the Code of Hammurabi, an insolvent debtor was often sold into slavery. In Celtic Ireland, a creditor would often “fast on” a debtor by placing himself or herself before the debtor’s doorway until the debt was paid. See generally Louis Edward Levinthal, The Early History of Bankruptcy Law, 66 U Pa L Rev 223 (1918).




For help in BaNKRUPTCY AND DIVORCE-Flint Genesee MI Attorney / Lawyer practicing in Family Law, Divorce, Bankruptcy. 810-235-1970

http://attorneybankert.com/


The 2005 amendments changed over 100 years of bankruptcy law. Some of the important changes made by BAPCPA include the following:

requiring consumer debtors to undergo financial counseling before filing for bankruptcy, 11 USC 109(h), 521(b), and before discharge, 11 USC 727(a)(11), 1328(g)(1)

means testing for consumer debtors seeking to discharge debts under Chapter 7, 11 USC 707(b)

bars against repetitive filing through limitation of the automatic stay, 11 USC 362(c)(3)

elimination of the debtor’s ability to retain secured collateral without redemption or reaffirmation, 11 USC 521(a)(6)







For help-Michigan, Flint Genesee, Lawyer / Attorney , Bankruptcy, 810-235-1970, Divorce and Family Law

http://terrybankert.blogspot.com/






II. Sources of Bankruptcy Law: The Bankruptcy Code and Rules

A. Structure of the Bankruptcy Code

§1.2 Most of the operative provisions of the Bankruptcy Code are located in Title 11 of the United States Code. This title is divided into nine chapters—1, 3, 5, 7, 9, 11, 12, 13, and 15. Some of them offer separate forms of relief to financially distressed debtors. Chapter 7 provides for the automatic appointment of a trustee who will liquidate all of the debtor’s nonexempt property and distribute the proceeds to creditors. Chapter 9 permits troubled municipalities to reorganize their affairs under the protection of the bankruptcy court. Chapter 11 allows for the reorganization of distressed debtors; this form of relief is often selected by troubled businesses that need some time to restructure their financial affairs. Chapter 12 permits family farmers to reorganize their farming operations under the protection of the bankruptcy court. Chapter 13 provides for the adjustment of debts of persons with “regular income.” This chapter expands the scope of the old wage-earner provisions contained in Chapter XIII of the Bankruptcy Act of 1898. Finally, Chapter 15 deals with ancillary and cross-border cases.





For Help-Bankruptcy, 810-235-1970, Flint, Bay CIty, Saginaw, Owosso, and Burton. Genesee Flint Lawyer / Attorney also Family Law and Divorce

http://dumpmycreditors.wordpress.com/




B. Rules Governing Bankruptcy Procedure: National and Local

§1.3 In 1983, the U.S. Supreme Court, acting pursuant to 28 USC 2075, adopted the Federal Rules of Bankruptcy Procedure (Bankruptcy Rules). These rules were drafted to conform with the provisions of the Code and govern procedure in all federal bankruptcy courts; they may not abridge, enlarge, or modify the substantive rights granted under the Code. 28 USC 2075. Recent revisions to the Bankruptcy Rules were made in 2003, 2008, 2009, and 2010 (effective December 1).







For help-Flint Michigan, Terry Bankert 810-235-1970 Flint Lawyer Attorney practicing in Family Law and Bankruptcy

http://goodmorningflint.blogspot.com/




B. Core and Related Proceedings

1. The Significant Distinction

§1.6 When litigating in the bankruptcy court, the practitioner must be keenly aware of the distinction made in the jurisdictional provisions of the Bankruptcy Code between core and noncore (or related) proceedings. This distinction is important primarily because in related proceedings, bankruptcy judges may not enter final orders and judgments without the consent of the litigants.

2. Core Proceedings

§1.7 What's New in this Section Bankruptcy judges may hear and decide all core proceedings and may enter orders and judgments in those proceedings subject to appellate review. 28 USC 157(b)(1). Examples of core proceedings are listed in 28 USC 157(b)(2) and include (1) motions to lift the automatic stay, (2) actions to recover fraudulent conveyances and preferences, and (3) determinations whether certain debts are dischargeable. Also included on the list are “other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or the equity security holder relationship.” 28 USC 157(b)(2)(O). For decisions construing the scope of core proceedings, see In re Pioneer Inv Servs Co, 946 F2d 445 (6th Cir 1991); Bliss Techs, Inc v HMI Indus (In re Bliss Techs, Inc), 307 BR 598 (ED Mich 2004); and In re Marshall, 118 BR 954 (WD Mich 1990).








For help-Flint DIvorce Family Law Attorney / Lawyer 810-235-1970

http://flintdivorce.wordpress.com/




E. Venue of Bankruptcy Cases and Proceedings

§1.17 In general, a debtor who seeks bankruptcy relief may file a bankruptcy petition in the court for the district in which the debtor’s domicile, residence, principal place of business, or principal assets have been located for 180 days before the date of filing. 28 USC 1408. In the Eastern District of Michigan, LBR 1071-1(a) (ED Mich) establishes three administrative units (Detroit, Flint, and Bay City) for cases filed in that district. If a case is filed in the wrong administrative unit—for example, if a corporation headquartered in Bay City files its petition in Detroit—the bankruptcy judge may transfer that case to the proper administrative unit. LBR 1071-1(c)(1) (ED Mich); see, e.g., In re Romzek, 50 BR 720 (Bankr ED Mich 1985). The Bankruptcy Court for the Western District of Michigan has adopted a similar local rule. See LBR 1014 (WD Mich).





For help-Divorce Lawyer in Flint Genesee MI 810-235-1970

http://flintdivorcelawyer.blogspot.com/






H. Electronic Filing of Cases and Pleadings

§1.20 On February 3, 2004, the U.S. Bankruptcy Court for the Western District of Michigan adopted Administrative Order No 2004-02, which provides for the electronic filing, signing, verification, and service of documents. This order provides that the electronic filing of a document in accordance with the Administrative Procedures “constitutes the filing of the document for all purposes.” On July 14, 2004, this court followed with Administrative Order No 2004-06, which requires “all petitions, pleadings and other papers filed in all cases and proceedings, whether pending or new,” to be filed electronically beginning on January 1, 2005. The Administrative Order was incorporated into and was superseded by the February 1, 2007, comprehensive revisions to the Western District Local Rules. Similarly, the Eastern District implemented electronic filing on a mandatory basis on January 1, 2006, and electronic filing is covered in the Eastern District’s local rules.







For Help-Bankruptcy Lawyer Flint, Owosso , Bay CIty, Saginaw Terry Bankert 810-235-1970

http://flintbankruptcy.blogspot.com/






IV. Parties in Interest in Bankruptcy Cases

A. In General

§1.21 In every bankruptcy case, there are certain persons, called parties in interest, who perform their statutory duties and attempt to enforce their rights and privileges. They are the debtor, the trustee, the U.S. trustee, secured creditors, unsecured creditors, and, in certain cases, creditors’ committees and equity security holders.





For help-Michigan Divorce Mediator Terry Bankert 810-235-1970

http://michigandumpmyspouse.blogspot.com/




B. Debtors

1. Chapter 7 Cases

§1.22 In Chapter 7 cases, a debtor may be an individual, a partnership, a corporation, or some other artificial person. However, only an individual may receive a discharge of debts in Chapter 7 cases; other entities may not. The 2005 amendments require that a debtor receive an individual or group briefing that outlines the opportunities available for credit counseling. The briefing must have been received within the 180-day period preceding the filing of the bankruptcy case. 11 USC 109(h)(1). This requirement is commonly referred to as the requirement for prefiling credit counseling.

Chapter 7 debtors must file certain documents with the bankruptcy court; must appear for questioning by creditors, the bankruptcy administrator, and the trustee at the meeting of creditors; and must perform other duties specified in the Code and the Bankruptcy Rules. If the individual debtor performs these duties and is not guilty of any bad acts as defined in the Code, the debtor will be granted a general discharge of prepetition debts and will retain exempt property to be able to make a fresh start in life.

After the debtor meets the duties specifically required under the Code, the debtor is required to complete an instructional course concerning personal financial management to obtain a discharge. 11 USC 727(a)(1). This is another requirement added by BAPCPA.





For Help-Flint Family Law ( Divorce) and Bankruptcy Lawyer

http://attorneybankert.blogspot.com/






2. Chapter 11 Cases

§1.23 Individuals, partnerships, and corporations all qualify for relief under Chapter 11 of the Code. A Chapter 11 debtor is normally retained as debtor-in-possession at the outset of the case and, as such, continues to operate its business as a fiduciary for all creditors within the guidelines prescribed by the bankruptcy court. The debtor, if not displaced by a trustee, then negotiates with its secured and unsecured creditors the terms of a plan calling for either the reorganization or the liquidation of the debtor’s assets and the adjustment of the rights of creditors and stockholders. This plan is sent to all creditors for a vote, and, after the votes are tallied, the plan may be confirmed and given effect by the bankruptcy court. Special rules apply for small businesses. See chapter 6.

In 2005, BAPCPA enacted comprehensive revisions to 11 USC 1112 and 1104, addressing conversion or dismissal and appointment of trustees. As amended, 11 USC 1112 provides that the courts “shall” rather than “may” convert or dismiss a case if it is in the best interests of creditors and if the movant establishes cause. Comprehensive examples of cause are set forth in the provision, and, in the event that the court decides that there is a basis or cause to dismiss or convert, the court has the alternative of appointing a Chapter 11 trustee or examiner.



For help-Bankruptcy Attorney 810-235-1970 Terry Bankert

http://michiganbankruptcyblog.wordpress.com/






3. Chapter 12 Cases

§1.24 Only “a family farmer or family fisherman with regular annual income” may be the subject of a Chapter 12 case. 11 USC 109(f). The term family farmer includes individuals, partnerships, and corporations but does not encompass all entities that are engaged in farming operations. 11 USC 101(18). Family farmers who seek relief under Chapter 12 normally file their reorganization plans soon after their case has been commenced. Chapter 12 plans provide for payments to be made on secured and unsecured debt over a period that may last as long as five years. Confirmation of the plan does not result in the family farmer’s discharge; this is granted only when the debtor completes making payments under the plan or qualifies for a hardship discharge.

Although Congress retroactively extended Chapter 12 in 2004 ( Pub L No 108-369, 118 Stat 1749 (2004)), BAPCPA made Chapter 12 a permanent provision of the Code.



For help-Flint Divorce Lawyer Attorney *10-235-1970 Terry Bankert

http://flintdivorceattorney.blogspot.com/






4. Chapter 13 Cases

§1.25 Only “individuals with regular income” may file Chapter 13 petitions and propose plans providing for the composition and extension of debts. Relief under this chapter is not available to artificial persons, nor is it available to individuals who do not receive regular income or are carrying heavy debt loads. 11 USC 109. A Chapter 13 debtor normally files, along with a voluntary petition, a proposed Chapter 13 plan, in which the debtor proposes to pay all or a portion of the debts over time with regular income. Unlike the Chapter 7 debtor, the Chapter 13 debtor is not required to surrender nonexempt property to the trustee for liquidation; the plan may propose that the debtor keep this property while he or she pays the debts. Unlike the Chapter 11 debtor, the Chapter 13 debtor does not receive a discharge once the plan is confirmed; discharge is granted only when the debtor performs all the obligations under the plan or otherwise qualifies for a hardship discharge.

As of April 1, 2007, the eligibility requirements for Chapter 13 debtors have been increased. Only individuals with regular income who have, on the date of filing a Chapter 13 petition, noncontingent and liquidated secured debts in an amount less than $1,010,650 and noncontingent and liquidated unsecured debts in an amount less than $336,900 are eligible for Chapter 13 relief. 11 USC 109(e). The debt limits are adjusted every three years, 11 USC 104(a), and increased to $1,081,400 and $360,475 effective April 1, 2010. See generally In re Pisczek, 269 BR 641 (Bankr ED Mich 2001); In re Faulhaber, 269 BR 348 (Bankr WD Mich 2001).



For help-Flint Family Law Attorney Terry Bankert

http://www.youtube.com/user/TRBANKERT




C. Trustees

1. Chapter 7 Cases

§1.26 In Chapter 7 cases, the U.S. trustee appoints an interim trustee on the entry of an order for relief, which generally occurs when the bankruptcy petition is filed. The trustee is selected from the panel of trustees for the judicial district in which the Chapter 7 petition has been filed by or against the debtor. The U.S. trustee may serve as trustee in a Chapter 7 case if none of the panel trustees are able or willing to serve. At the meeting of creditors, the creditors may vote either to allow the interim trustee to continue as the permanent trustee or to replace that person with another from the panel. See generally In re Lindell Drop Forge Co, 111 BR 137 (Bankr WD Mich 1990). If no voting takes place, the interim trustee becomes the permanent trustee.

The trustee is a representative of the debtor’s estate and as such is required to investigate the debtor’s affairs and liquidate his or her nonexempt property for the benefit of creditors. The trustee may also seek to augment property of the estate by filing actions to recover preferences, fraudulent conveyances, and other voidable transfers made by the debtor to third parties. Once this property is collected and reduced to cash, the Chapter 7 trustee files a final report and account with the bankruptcy court in which the trustee proposes how these cash proceeds should be distributed. When the court approves this final report and account, the trustee distributes the cash to creditors and closes the Chapter 7 case. See chapter 5 for further discussion of the trustee’s role in Chapter 7 cases.





For help-Terry R.Bankert P.C. Bankruptcy Discussions

http://www.facebook.com/pages/Terry-R-Bankert-PC-Family-Law-and-Bankruptcy-Discussions/289335187165








SOURCE

Handling Consumer and Small Business Bankruptcies in Michigan ch 1 (Richardo I. Kilpatrick et al eds, ICLE 2009), at
 http://www.icle.org/modules/books/chapter.aspx/?lib=bankruptcy&book=2009550820&chapter=01




(last updated 09/30/2011

Sphere: Related Content