Pursuant to the disclosure requirements of §528(a)(4) of the Bankruptcy Code, please be advised that we are a debt relief agency.  We help people file for bankruptcy relief under the Bankruptcy Code.

The United States Senate passed the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (the “BAPCPA”) on March 10, 2005, and the House of Representatives passed the Act without amendment on April 14, 2005, sending it to the President. President Bush signed the Act into law on April 20, 2005. On October 17, 2005, the Bankruptcy Abuse Prevention and Consumer Protection Act became effective. The new Bankruptcy Code has vast changes that will affect the manner in which consumer bankruptcy cases are handled. These changes, if not understood, can have a dramatic affect on your assets and ability to discharge your liabilities.

At LaMonica Herbst & Maniscalco, LLP, the Firm has provided numerous seminars to practitioners, consumers and Bar Association regarding the impact and effect of the Bankruptcy Code. The Firm has a delicate understanding of the statutory changes, procedural rules and context under which the new Bankruptcy Code is aimed.

The Firm has put together a comprehensive and detailed analysis of the changes in the new Bankruptcy Code. Some of those changes are contained below.
    1. BAPCPA §319 expresses the “Sense of Congress’ that Federal Rule of Bankruptcy Procedure 9011 should be modified to include the requirement that all documents, including schedules, whether signed or unsigned, that are submitted to the court or to a trustee by a debtor who is acting pro se or who is represented by an attorney should not be submitted until the Debtor and the Debtor’s attorney have made "reasonable inquiry" to verify that the information contained in such document is
      (a) well grounded in fact; and
      (b) warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.

    2. BAPCPA section 109(h) requires that all individual debtors must obtain, within 180 days of filing bankruptcy, an individual or group briefing from an approved nonprofit budget and credit counseling agency, and the briefing must at a minimum, have “outlined the opportunities for available credit counseling and assisted such individual in performing a related budget analysis.” Unless an exception applies, as a condition to filing bankruptcy, the debtor must file with the court a certificate from the agency describing the services offered, and, if a debt repayment plan was created, the debtor must file that plan. The price of this counseling is approximately $50.00.

    3. BAPCPA section 521(e) requires the chapter 7 and 13 debtor to give to the trustee, prior to the meeting of creditors, a copy of the most recent year’s federal tax return and give a copy to any creditor requesting it. A transcript may be provided instead of the return. Failure to provide the return requires dismissal of the case unless the debtor can show that failure is due to circumstances beyond the debtor’s control.

    In addition, chapter 13 debtors must file all required tax returns (state, federal, or local) prior to the meeting of creditors. BAPCPA section 521(j) provides that, during any case of an individual debtor, if the taxing authority so requests and upon the debtor’s failure to file post petition returns, the court shall dismiss or convert the case, whichever is in the best interests of the creditors and the estate.

    In a chapter 7, 11, or 13 case of an individual debtor, upon request by the court, the U.S. Trustee, or a party in interest, the debtor shall file a copy of all federal tax returns due while the case is pending, and in chapter 13, these returns must be filed annually.

    4. Prior to receiving a discharge, the individual debtor must complete a personal financial management course. Even after you file for bankruptcy, in order to obtain a discharge, you then must again complete an instructional course concerning personal financial management described in Section 111. The cost of this is anticipated to be another $50.00.

    5. In addition to the typical schedules accompanying a petition, the debtor must file a certificate by the debtor’s attorney or a petition preparer that the debtor has been given the extensive notice required by §342(b); a copy of all payment advices from the debtor’s employer showing payments to the debtor within the prior 60 days; a statement of net monthly income, itemized to show how it was calculated, analysis of mean test capability, and a statement of reasonably anticipated increases in income or expenditures over the next 12 months.

    Failure to complete and file all required schedules within 45 days of filing shall result in dismissal of the case, unless the debtor, trustee, or a party in interest successfully moves for an extension, which cannot exceed another 45 days.

    6. Within 30 days of the meeting of creditors, the chapter 7 debtor must perform the stated intention of surrender, redemption, or reaffirmation, and the failure to do so will result in relief rom the automatic stay protection afforded to a debtor in bankruptcy. Also, §521(a)(6) provides that a Chapter 7 debtor may not retain possession of purchase money collateral beyond 45 days from the meeting of creditors without redeeming the collateral or reaffirming the debt. Failure here results in relief from the automatic stay whereby the creditor can come and take their property back from the Debtor.

    7. If the debtor has an interest in an education individual retirement account or a qualified state tuition program, the debtor must disclose that interest at the time of filing the schedules.

    8. If the debtor has filed previously, the filings may trigger termination of the automatic stay or prevent the stay from taking effect. To preserve the stay, or to activate it, in a subsequent filing, the debtor will need to take quick steps and carry a burden of proof. The debtor must disclose and notice a landlord who has obtained a prebankruptcy judgment, and for property subject to bailment or lease, any prebankruptcy defaults are retained as effective. For these and other reasons, familiarity with the changes in the automatic stay, is essential.

    New Section 362(c)(3) essentially provides that if you previously had a case under chapter 7, 11 or 13 dismissed within the preceding 1 year, then the automatic stay shall terminate on the 30th day after the filing of the later case.

    New Section 362(c)(4) essentially provides that if you previously had 2 or more cases under chapter 7, 11 or 13 pending within the previous year that were dismissed then, the automatic stay shall not go into effect upon the filing of the later case. If, within 30 days after the filing of the later case, a party in interest requests, the court may order the stay to go into effect but only if the party in interest demonstrates that the filing of the later case is in good faith as to the creditors to be stayed. Importantly though, the stay does not go into effect here until the court enters an appropriate order.

    9. If the U.S. Trustee or case trustee requests it, the debtor must provide a document establishing identity, such as driver’s license or passport.

IMPORTANT INFORMATION ABOUT BANKRUPTCY ASSISTANCE SERVICES FROM AN ATTORNEY OR BANKRUPTCY PETITION PREPARER.

If you decide to seek bankruptcy relief, you can represent yourself, you can hire an attorney to represent you, or you can get help in some localities from a bankruptcy petition preparer who is not an attorney. THE LAW REQUIRES AN ATTORNEY OR BANKRUPTCY PETITION PREPARER TO GIVE YOU A WRITTEN CONTRACT SPECIFYING WHAT THE ATTORNEY OR BANKRUPTCY PETITION PREPARER WILL DO FOR YOU AND HOW MUCH IT WILL COST. Ask to see the contract before you hire anyone.

The following information helps you understand what must be done in a routine bankruptcy case to help you evaluate how much service you need. Although bankruptcy can be complex, many cases are routine.

Before filing a bankruptcy case, either you or your attorney should analyze your eligibility for different forms of debt relief available under the Bankruptcy Code and which form of relief is most likely to be beneficial for you. Be sure you understand the relief you can obtain and its limitations. To file a bankruptcy case, documents called a Petition, Schedules and Statement of Financial Affairs, as well as in some cases a Statement of Intention need to be prepared correctly and filed with the bankruptcy court. You will have to pay a filing fee to the bankruptcy court. Once your case starts, you will have to attend the required first meeting of creditors where you may be questioned by a court official called a 'trustee' and by creditors.

If you choose to file a chapter 7 case, you may be asked by a creditor to reaffirm a debt. You may want help deciding whether to do so. A creditor is not permitted to coerce you into reaffirming your debts.

If you choose to file a chapter 13 case in which you repay your creditors what you can afford over 3 to 5 years, you may also want help with preparing your chapter 13 plan and with the confirmation hearing on your plan which will be before a bankruptcy judge.

If you select another type of relief under the Bankruptcy Code other than chapter 7 or chapter 13, you will want to find out what should be done from someone familiar with that type of relief.

Your bankruptcy case may also involve litigation. You are generally permitted to represent yourself in litigation in bankruptcy court, but only attorneys, not bankruptcy petition preparers, can give you legal advice.


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