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By: Mark Haut, PRACTICAL GUIDANCE BANKRUPTCY TEAM with assistance from Emony Robertson, LEXISNEXIS RULE OF LAW FOUNDATION FELLOW
This chart details the differences between Chapters 7 and 13 of the Bankruptcy Code and can be used to guide attorneys in understanding the differences between these chapters.
Practical Guidance supports the efforts to advance what’s possible in the world by strengthening the rule of law, illustrating transparency in the law, and providing equitable access to legal remedies. In connection therewith, this checklist contains a short list of questions practitioners should pose when counseling consumer clients to file for Chapter 7, or alternatively, Chapter 13. For more information, see Advancing the Rule of Law in Consumer Bankruptcies below.
Chapter 7 of the Bankruptcy Code is utilized by individual and business debtors to liquidate assets. Chapter 7 cases are designed to give (1) an individual debtor a fresh start in the form of discharge of his or her debts and (2) a business debtor relief from its debts through an orderly dissolution process. In exchange for the fresh start or business relief, the debtor submits its assets to the control of a Chapter 7 trustee. If the Chapter 7 trustee discovers value in the debtor’s assets, the trustee is required to sell those assets and distribute the proceeds to the debtor’s creditors. Chapter 13 is for individuals (other than stockbrokers or commodity brokers) residing (or with a domicile or place of business) in the United States with regular income sufficiently stable to make payments under a Chapter 13 plan. After the debtor completes plan payments, a discharge issues for the remainder of the debt not paid through the Chapter 13 plan, giving the debtor his or her fresh start.
For All Chapters: An individual cannot fileunder any chapter if, during the preceding180 days, the individual previously filed abankruptcy petition that was dismissed (1) bythe court because the individual disobeyedorders or failed to appear to prosecute the caseor (2) on the individual debtor’s motion aftera request for relief from stay had been filed.11 U.S.C.S. §§ 109(g), 362(d), and (e). Subject tocertain exceptions, an individual also may notbe a debtor under any chapter unless he or shereceived credit counseling from an approvedcredit counseling agency in an individual or agroup briefing within 180 days before filing.11 U.S.C.S. §§ 109(h), 111.
Relevant Bankruptcy Code Sections /Bankruptcy Rules:11 U.S.C.S. §§ 101, 109(g) , 362, 707
Related Content:• Chapter 7 Liquidation• Chapter 13 Bankruptcy
Individuals, stockbrokers, commodity brokers, corporations,and certain other business entities may file for relief under Chapter7. 11 U.S.C.S. §§ 101(13) and (41), 109(b). Railroads and domesticand foreign insurance companies, banks, and credit unions are noteligible for relief under Chapter 7. 11 U.S.C.S. § 109(b).
The amount of the debtor’s debt does not impact an individualor business debtor’s ability to seek relief under Chapter 7. Theindividual or business debtor simply must owe debts. However,an individual debtor’s income level may impact the ability to seekrelief under Chapter 7. The means test may force individual debtorsinto Chapter 13 if they want to obtain a discharge of their debts(described later in this chart).
Only individuals may be debtorsunder Chapter 13. To qualify, theindividual, as of the petition date,must have regular income and:
Relevant Bankruptcy Code Sections /Bankruptcy Rules:11 U.S.C.S. §§ 301, 303Related Content:
The debtor may commence a Chapter 7 case by filing avoluntary petition. 11 U.S.C.S. § 301. Creditors can commencean involuntary case by filing an involuntary petition against thedebtor. 11 U.S.C.S. § 303(b).
A Chapter 13 case may only be commenced by the debtor filinga voluntary bankruptcy petition. 11 U.S.C.S. §§ 301, 303(a).
Relevant Bankruptcy CodeSections / Bankruptcy Rules:11 U.S.C.S. §§ 521, 701, 702,703, 704, 707, 1106, 1302,1322, 1326Fed. R. Bankr. P. 2015Related Content:
Upon the filing of a Chapter 7 petition, the U.S. Trustee will appoint a panel member to serve for thatparticular case. 11 U.S.C.S. § 701. At the Section 341 meeting of creditors, creditors may request an electionbe held to appoint a permanent trustee. 11 U.S.C.S. § 702. If no such request is received and no electionis held, the interim trustee becomes the permanent trustee in the case. 11 U.S.C.S. § 702(d).
The Chapter 7 trustee must perform certain dutiespursuant to Section 704 of the Bankruptcy Codeincluding the following:
A Chapter 7 trustee must also fulfill the obligations outlined in the U.S. Trustee’s Handbook For Chapter 7 Trustees (Handbook). These obligations consist of, among other things, reviewing debtor documents to ensure adequacy and timeliness, including the following documents:
Chapter 13 debtors retain possession of their assets andare permitted to continue business operations (to theextent applicable) during the bankruptcy. In Chapter 13, abankruptcy trustee is appointed at the commencement of thecase. 11 U.S.C.S. § 1302(a). The Chapter 13 Trustee mustperform some of the same tasks as a Chapter 7 trustee andcertain additional tasks, including the tasks listed below:
The Chapter 13 trustee has additional duties,including:
Relevant Bankruptcy CodeSections / Bankruptcy Rules:11 U.S.C.S §§ 101(10A),101(39A), 707, 1325
Fed. R. Bankr. P. 1007
The means test identifies Chapter 7 individual debtors who can repay someof their debts and forces them into Chapter 13 if they want to obtain adischarge of their debts. The means test calculates an individual debtor’sdisposable income and estimates the debtor’s ability to repay generalunsecured debts. The means test is used to determine whether a Chapter 7 caseis presumed abusive for purposes of dismissal. 11 U.S.C.S. § 707(b).
Statement of Current Monthly Income
The Chapter 7 statement of current monthly income (CMI) is the first part ofthe Chapter 7 means test and is divided into two parts. 11 U.S.C.S. § 101(10A).Part 1 requires the debtor to calculate his or her CMI. This part is the sameunder Chapters 7 and 13. Part 2 compares the debtor’s CMI to theapplicable median income for the debtor’s state of residency to determinewhether the Chapter 7 case is presumed abusive. Each state has its own medianfamily income which can be found on the U.S. Department of Justice website.
If the debtor’s CMI is below the applicable median income, then nofurther action with regard to the means test is needed. If the debtor’s CMI isabove the applicable median income, the Chapter 7 means test calculationform must be filled out.
Calculation of Income
The Chapter 7 means test is the second part of the Chapter 7 means test. It calculates the debtor's income and is dividedinto four parts.
Part 1 of the Chapter 7 means test adjusts the debtor's CMIby subtracting any portion of the debtor's spouse's income notregularly used to pay household expenses (marital deduction).
Part 2 of the Chapter 7 means test calculates the debtor'smonthly disposable income by deducting certain livingexpenses and debt payments from the debtor's CMI. The U.S.Department of Justice posts links to the allowed expense datafor bankruptcy practitioners.
Part 3 of the Chapter 7 means test determines whethera presumption of abuse exists by multiplying the debtor'sdisposable income by 60 months. The presumption of abusearises if the individual debtor's five-year disposable income isgreater than $13,650. Alternatively, the presumption of abusearises if the individual debtor's five-year disposable income isat least $8,175 but not more than $13,650 and enough to pay25% of the total general unsecured debt.
Part 4 of the Chapter 7 means test permits the debtor to listany special circumstances that justify additional deductionsor adjustments to the debtor's disposable income. To claimspecial circumstances, a debtor must itemize each and providedocumentation of the additional expense/adjustment claimed.Note that special circumstances are rarely allowed.
Statement of Exemption
Certain Chapter 7 individual debtors may claim an exemptionfrom a presumption of abuse if the debtor is one or more ofthe following:
If any of the above applies, the debtor may claim theexemption and is not required to fill out the remainder of theChapter 7 means test.
In Chapter 13 cases, the means testdetermines the applicable commitment periodfor the Chapter 13 plan and the debtor’sdisposable income necessary for inclusion inthe plan. 11 U.S.C.S. § 1325.
The Chapter 13 statement of current monthlyincome (CMI) is the first part of the Chapter13 means test and is divided into three parts.
Part 1 requires the debtor to calculate his or her CMI. This part is the same under Chapters7 and 13. Part 2 of the Chapter 13 means test (1) adjusts the debtor’s CMI by subtractingany portion of the debtor’s spouse’s income not regularly used to pay household expenses(marital adjustment) and (2) compares the debtor’s adjusted CMI to the applicablemedian income for the debtor’s state of residency. Each state has its own medianfamily income which can be found on the U.S. Department of Justice website.
Part 3 of the Chapter 13 means test calculates the applicable commitment period.If the debtor’s current monthly income is less than the median family income applicableto the debtor, then (1) the commitment period for the Chapter 13 plan is three years,and (2) no further action with regard to the means test is needed. If the debtor’s currentmonthly income is above the median family income applicable to the debtor, then (1) thecommitment period for the Chapter 13 plan must be five years, and (2) the Chapter 13disposable income calculation form must be filled out.
The Chapter 13 calculation of disposable income is the second part of the Chapter 13 means test and is divided into threeparts.
Part 1 of the Chapter 13 calculation of disposable incomeadjusts the debtor’s CMI by deducting certain living expensesand debt payments from the debtor’s CMI. The U.S.Department of Justice posts links to the allowed expense datafor bankruptcy practitioners.
Part 2 of the Chapter 13 calculation of disposable income(1) permits the deduction of certain additional expenses fromthe debtor’s CMI and (2) calculates the debtor’s disposablemonthly income. This is the amount required to be paidmonthly to unsecured creditors through the Chapter 13 planunder Section 1325(b). Monthly disposable income multipliedby 60 represents the minimum amount that the debtor mustpay to general unsecured creditors.
Part 3 of the Chapter 13 means test permits the debtor to listany special circumstances that justify additional deductionsor adjustments to the debtor’s disposable income. To claimspecial circumstances, a debtor must itemize each and providedocumentation of the additional expense/adjustment claimed.Note that special circumstances are rarely allowed.
There is no exemption from completing the Chapter 13 meanstest. All Chapter 13 debtors must complete both the Chapter13 Statement of Income and Chapter 13 Calculation ofDisposable Income forms.
Relevant Bankruptcy CodeSections or Rules:
11 U.S.C.S. §§ 521, 1308
Fed. R. Bankr. P. 4002
Chapter 7 debtors must provide the Chapter 7 trustee with their most recentfederal income tax return no later than seven days prior to the date first set forthe Section 341(a) meeting of creditors. 11 U.S.C.S. § 521(e)(2); Fed. R. Bankr. P.4002(b)(3).
If the debtor does not submit and file the requisite tax returns and failsto show that circumstances beyond the debtor’s control prevented thesubmission, the bankruptcy court will dismiss the case. See 11 U.S.C.S. § 521(e)(2)(B).
Chapter 13 debtors must provide the Chapter 13 trustee with their most recent federalincome tax return no later than seven days prior to the date first set for the Section341(a) meeting of creditors. 11 U.S.C.S. § 521(e)(2); Fed. R. Bankr. P. 4002(b)(3).If the debtor does not submit and file the requisite tax returns and fails to show thatcircumstances beyond the debtor’s control prevented the submission, the bankruptcycourt will dismiss the case. See 11 U.S.C.S. § 521(e)(2)(B).
Chapter 13 debtors must also ensure that all tax returns required to be filed withinthe four-year period preceding the filing of the Chapter 13 case have been filed withthe appropriate taxing authority. 11 U.S.C.S. § 1308.
11 U.S.C.S. § 327.Fed. R. Bankr. P. 2014.
A Chapter 7 trustee must retainprofessionals pursuant to Section 327(a)of the Bankruptcy Code and BankruptcyRule 2014.
A Chapter 13 trustee must retainprofessionals pursuant to Section 327(a) ofthe Bankruptcy Code and Bankruptcy Rule2014.A Chapter 13 debtor does not need courtapproval to retain professionals. However, incertain instances, a Chapter 13 debtor shouldrequest court approval to retain professionals.For example, a Chapter 13 debtor mayneed to engage outside counsel to pursuea personal injury claim. If employment isnot approved by the bankruptcy court, theprofessional may not be able to collect anyfees.
11 U.S.C.S. § 524
Fed. R. Bankr. P. 4004, 4008
An individual Chapter 7 debtor must file a statementof intentions with regard to debts secured by propertyof the estate. 11 U.S.C.S. § 521(a)(2)(A); Fed. R. Bankr.P. 1007(b)(2). The statement must indicate whetherthe debtor intends to reaffirm, redeem, or surrendersuch property and, if applicable, must state whetherthe property is claimed as exempt. The debtor must filethe statement within 30 days after the petition dateor on or before the date of the meeting of creditors,whichever is earlier.
The debtor must perform his or her intention (as setforth on the statement) within 30 days of the firstset date for the Section 341(a) meeting of creditors.11 U.S.C.S. § 521(a)(2)(B).
A statement of intentions isnot required in a Chapter 13bankruptcy case. Chapter 13debtors specify their intentionsin a Chapter 13 plan (discussedbelow).
11 U.S.C.S. § 327Fed. R. Bankr. P. 2014
A reaffirmation agreement is a voluntary contractbetween the debtor and a creditor to establish thevalidity of a particular debt and except the debt froma Chapter 7 discharge. In some instances, a debtormay desire to continue paying on a specific debt eventhough the debt could be discharged in the bankruptcycase. In those instances, a reaffirmation agreementmay be utilized to except the debt from dischargeand contractually bind the debtor to the repayment.Reaffirmation agreements are usually reserved forsecured debts where the debtor wants to keep theproperty that secures the debt. Section 524 of theBankruptcy Code sets forth the requirements for anenforceable reaffirmation agreement.
A reaffirmation agreement must be filed no later than60 days after the date first set for the Section 341(a)meeting of creditors. Fed. R. Bankr. P. 4008(a).
The court has discretion to enlarge the time to filea reaffirmation agreement. Id. A debtor can make amotion to defer entry of the discharge if they needadditional time to negotiate reaffirmation agreements.Fed. R. Bankr. P. 4004(c)(2)
Reaffirmation agreements arenot relevant in Chapter 13cases. The Chapter 13 plandetails the treatment of claimsand property in Chapter 13cases.
Relevant Bankruptcy Code Sections /Bankruptcy Rules:
11 U.S.C.S. § 722Fed. R. Bankr. P. 6008
Redemption is the process throughwhich an individual Chapter 7 debtormay retain certain personal propertyby making a lump-sum payment to thesecured creditor of the fair market valueof the property or the amount of claim.Redemption only applies to exempt orabandoned, tangible, personal propertythat is used primarily for personal, family,or household use and is subject to a liensecuring a dischargeable consumer debt.
Redemption may be voluntary throughan agreement between the debtor andthe creditor. If the creditor does notconsent, however, the debtor may file amotion under Bankruptcy Rule 6008 forcourt authorization of the redemption.
Redemption is not utilized in Chapter13 cases. The Chapter 13 plan detailsthe treatment of claims and propertyin Chapter 13 cases.
Individual Debtors:The automatic stay is limited where theindividual debtor has filed one priorcase under Chapter 7, Chapter 11, orChapter 13, dismissed within one yearof the current pending case. 11 U.S.C.S.§ 362(c). Where the individual debtorhas filed two or more prior cases underChapter 7, Chapter 11, or Chapter 13,the automatic stay is unavailable in thepending case. 11 U.S.C.S.§ 362(c)(4)(A).
Relevant Bankruptcy Code Sections orRules:
11 U.S.C.S. §§ 101, 362, 521, 1301
Collection efforts against non-debtorco-obligors, guarantors, codefendants,partners, and sureties are notautomatically stayed. 11 U.S.C.S.§ 362(a).
In an individual debtor’s bankruptcycase, the automatic stay terminateswith respect to personal property if thedebtor fails to timely comply with therequirement in Section 521(a)(2) thatthe debtor file a statement of intentionand perform such intention for suchproperty. 11 U.S.C.S.§ 362(h)(1).
Subject to certain exceptions,the automatic stay applies tostay collection efforts againstco-obligors for consumer debt.11 U.S.C.S.§ 1301; see also11 U.S.C.S. § 101(8) (for thedefinition of consumer debt).
Section 362(h) only applies in Chapter7 and not an individual debtor’s caseunder Chapter 13 even though thestatute does not limit its applicabilityto Chapter 7. The reason is thatSection 362(h) requires compliancewith Section 521(a)(2), which onlyapplies to Chapter 7 cases (and bothsections only apply to individualcases).
Fed. R. Bankr. P. 2002, 3002
In a Chapter 7 case, a proof of claim is timely filed if itis filed not later than 70 days after the petition date orthe date of conversion to the chapter (and 90 days afterthe order for relief in an involuntary case).Fed. R. Bankr. P. 3002(c).
Governmental units generally have 180 days after entryof the order for relief to file proofs of claim.Fed. R. Bankr. P. 3002(c)(1).
The exception to these deadlines is when the trusteefiles and serves a notice of insufficient assets to paya dividend. Fed. R. Bankr. P. 2002(e). In most cases,a Chapter 7 debtor has no assets to distribute tocreditors. Such cases are known as no asset cases. Thetrustee will send a notice to unsecured creditors thatthey do not need to file proofs of claim because therewill not be a distribution.
If the Chapter 7 trustee later determines that thedebtor has assets that can be liquidated for distributionto unsecured creditors, the trustee will notifyunsecured creditors to file proofs of claim so that theymay participate in the distribution. The notice mustprovide at least 90 days’ notice by mail to creditors ofthe date for filing proofs of claim.
In a Chapter 13 case, a proof ofclaim is timely filed if it is filednot later than 70 days afterthe petition date or the date ofconversion to the chapter (and90 days after the order forrelief in an involuntary case).Fed. R. Bankr. P. 3002(c).
Governmental units generallyhave 180 days after entryof the order for relief to fileproofs of claim. Fed. R. Bankr.P. 3002(c)(1).
11 U.S.C.S. §§ 706, 1307Fed. R. Bankr. P. 1017, 9013, 9014
A Chapter 7 debtor may voluntarilyconvert to a Chapter 11, 12, or 13case, at any time, if (1) he or she iseligible under the rules for thosechapters and (2) the Chapter 7 casewas not previously converted from aChapter 11, 12, or 13 case. 11 U.S.C.S.§ 706(a). The debtor must file a motionto convert under Section 706(a) andserve the motion in accordance withBankruptcy Rule 9013.
Fed. R. Bankr. P. 1017(f)(2).
The court considers whether (1) thecase has been previously converted,(2) the debtor is eligible for thechapter he or she seeks to convert to,and (3) the conversion is sought in badfaith prior to entering an order on amotion to convert a Chapter 7 case.Any waiver of the right to convertunder Section 706(a) is unenforceable.
Section 706(c) provides that a Chapter7 case may not be converted to aChapter 12 or Chapter 13 case unlessthe debtor consents to (or requests)such conversion. 11 U.S.C.S. § 706(c).However, the court may convert aChapter 7 case to a Chapter 11 caseon the request of a party in interestat any time after notice and a hearing.11 U.S.C.S.§ 706(b). An involuntaryconversion from a Chapter 7 case toChapter 11 only occurs in corporate(not an individual) cases.
The court may dismiss a Chapter 7 case, upon noticeand a hearing, for cause including:
11 U.S.C.S .§ 707(a). The factors listed in Section 707(a)are non-exhaustive and the bankruptcy court maydismiss a Chapter 7 case on other grounds if the courtfinds sufficient cause.
The court may also dismiss a Chapter 7 case if thedebtor’s debts are mainly consumer and if granting adischarge would be an abuse of Chapter 7 based upon:
11 U.S.C.S. § 707(b)(1)–(b)(3)
The debtor has an absolute rightto convert a Chapter 13 case to acase under Chapter 7. 11 U.S.C.S.§ 1307(a); Fed. R. Bankr. P. 1017.The debtor must file a notice ofconversion to convert the case. Fed.R. Bankr. P. 1017(f)(3). The debtoralso has an absolute right to dismissa Chapter 13 unless the case waspreviously converted from a Chapter7, 11, or 12 case. 11 U.S.C.S.§ 1307(b); Fed. R. Bankr. P. 1017(f).
The court may convert a Chapter 13 case to a Chapter 11 or 12 caseprior to confirmation of a Chapter 13 plan, after notice and a hearing.11 U.S.C.S. § 1307(d). The court may also grant a party’s motion toconvert to Chapter 7 or dismiss the Chapter 13 case where there iscause justifying conversion or dismissal of the case. Section 1307(c)currently lists 11 nonexclusive examples of cause:
11 U.S.C.S. § 1307(c).
Section 1307(e) requires the bankruptcy court to convert a Chapter13 case to Chapter 7 (or dismiss the Chapter 13 case) upon requestby a party in interest if the debtor fails to file a tax return as requiredunder Section 1308 of the Bankruptcy Code. 11 U.S.C. § 1307(e)
11 U.S.C.S. §§ 1307, 1321, 1322, 1324,1325, 1326
Fed. R. Bankr. P. 3015
There is no plan in Chapter 7bankruptcy cases.
A Chapter 13 debtor must file aChapter 13 plan with the petitionor within 14 days thereof, unlessthe court extends the time for filing.11 U.S.C.S. § 1321; Fed. R. Bankr. P.3015(b). Most jurisdictions requirethe use of a standardized formChapter 13 plan. See Official FormB113, Chapter 13 Plan. Section1322 of the Bankruptcy Code setsforth the mandatory and optionalprovisions for Chapter 13 plans.11 U.S.C.S. § 1322. A Chapter 13debtor must make his or her firstplan payment within 30 days afterthe filing of the petition. 11 U.S.C.S.§ 1326(a)(1). The failure to file a planis grounds for dismissal. 11 U.S.C.S. §1307(c)(3).
Section 1325 sets forth theconfirmation requirements forChapter 13 plans. There is no rightto vote on a plan. Rather, parties ininterest have the right to object tothe plan (does not meet confirmationstandards or other general grounds).11 U.S.C.S. § 1324; see also Fed.R. Bankr. P. 3015.The confirmationhearing must be held between 20and 45 days after the Section 341meeting of creditors but could beheld earlier if in the best interests ofcreditors and there is no objection.11 U.S.C.S. § 1324(b).
11 U.S.C.S. §§ 727, 1328Fed. R. Bankr. P. 1007, 4004
Individual Chapter 7 debtors mustcomplete a financial managementcourse to obtain a discharge.11 U.S.C.S. § 727(a)(11); Fed. R. Bankr.P. 1007(b)(7)(A), 4004(c)(1)(H). Thedebtor must complete the courseand file a certification with the courtwithin 60 days of the first date set forthe Section 341 meeting of creditors.Fed. R. Bankr. P. 1007(c).
Individual Chapter 13 debtors mustcomplete a financial managementcourse to obtain a discharge.11 U.S.C.S. § 1328(g); Fed. R. Bankr. P.1007(b)(7)(A), 4004(c)(4). The debtormust complete the course and filea certification with the court beforemaking the last payment under the planor before filing a motion for a hardshipdischarge (discussed below) underSection 1328(b) of the BankruptcyCode. Fed. R. Bankr. P. 1007(c).
11 U.S.C.S. §§ 522, 523, 524, 727,1328
Fed. R. Bankr. P. 4004
A Chapter 7 discharge is only available inindividual cases. Corporate Chapter 7 debtorsare not eligible to receive a discharge. 11U.S.C.S. § 727(a)(1). A Chapter 7 dischargeis typically entered after 60 days after thedate first set for the Section 341 meetingof creditors as set forth in Bankruptcy Rule4004.
Section 727(a) lists the grounds which serveas a basis for denial of a general Chapter 7discharge, which include:
If one of these grounds exists and is timely asserted, thedebtor is denied a discharge of all debts.
Even if an individual debtor receives a general discharge,certain debts may be excepted from the discharge. Theseexcepted debts remain due and owing as personal liabilitiesof the debtor as if no bankruptcy occurred. Section 523(a)enumerates the debts excepted from discharge and includes:
If one of these grounds exists and is timely asserted, thedebtor is denied a discharge of that particular debt.
In most cases, once the Chapter 13 debtor completes thepayments under the payment plan, the debtor receives adischarge. 11 U.S.C.S. § 1328(a).
A discharge in Chapter 13 includes some debts thatcannot be discharged in a Chapter 7, including:
11 U.S.C.S. § 1328. A discharge will not be granted if the debtorpreviously received a discharge:
11 U.S.C.S. § 1328(f). A motion objecting to discharge underSection 1328(f) must be filed no later than 60 days after thefirst date set for the Section 341 meeting of creditors. Fed. R.Bankr. P. 4004(a).
The debtor can qualify for a hardship discharge if:
11 U.S.C.S. § 1328(b).
A debtor will be denied a discharge upon a finding by the courtthat there is reasonable cause to believe that Section 522(q)applies to the debtor and there is a proceeding where thedebtor may be guilty of a felony specified in Section 522(q)(1)(A) or liable for a debt of the kind described in Section 522(q)(1)(B). 11 U.S.C.S. § 1328(h).
The debtor will not receive a discharge if the debtor has notfiled the financial management certification. Fed. R. Bankr. P.4004(c)(4).
11 U.S.C.S. §§ 727, 1328
Fed. R. Bankr. P. 9024
The Chapter 7 trustee, the U.S. Trustee, or acreditor may seek to revoke the discharge bycommencing an adversary proceeding on thefollowing grounds:
11 U.S.C.S. § 727(d). The complaint to revokethe discharge must be filed within one yearafter granting of the discharge if the plaintiff isasserting the ground that the individual debtorobtained a discharge was through fraud underSection 727(d)(1). 11 U.S.C.S. § 727(e)(1).
The plaintiff must seek revocation within oneyear after granting of the discharge or by thedate the case is closed, whichever is later,if the revocation is based on the individualdebtor fraudulently failing to report or deliverproperty under Section 727(d)(2) or that theindividual debtor committed an act specifiedin Section 727(a)(6). 11 U.S.C.S. § 727(e)(2).
On request of a party in interestbefore one year after a dischargeis granted, and after notice anda hearing, the court may revokethe discharge if:
11 U.S.C.S. § 1328(e).
In counseling clients on the proper chapter to file for consumer bankruptcy, and in an effort to advance the rule of law, the transparency of law, and equitable access to legal remedies, attorneys should consider the following:
For more information, see Chapter 7 Liquidation and Chapter 13 Bankruptcy. For additional resources, see Consumer Bankruptcy Resource Kit.
Mark Haut is a Content Manager for Practical Guidance. Prior to joining Practical Guidance, he was counsel at Norton Rose Fulbright, where he advised clients on a variety of bankruptcy matters. Previously, he was an associate in the Bankruptcy and Reorganization Practice Group at Morgan, Lewis & Bockius, LLP. Prior to joining Morgan Lewis, he clerked for Judge Stuart M. Bernstein in the United States Bankruptcy Court for the Southern District of New York.
Emony M. Robertson is a third year law student at Howard University School of Law. Her time as a Robert S. Strauss Diversity & Inclusion Scholar at Akin Gump Strauss Hauer & Feld LLP, along with her participation in the Annual Duberstein Bankruptcy Competition, helped to clarify her interest in bankruptcy litigation. Emony’s LexisNexis Rule of Law Foundation Fellowship focused on reducing racial bias in consumer bankruptcy practices. Emony currently serves as the Captain of the Charles Hamilton Houston National Moot Court Team and a Student Attorney in the Investor Justice Education Clinic. After graduation in May 2022, she will clerk for Judge Craig Goldblatt in the United States Bankruptcy Court for the District of Delaware.
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