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59 Cards in this Set

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What does the term "assisted person" mean?
The term "assisted person" means any person whose debts consist primarily of consumer debts and the value of whose nonexempt property is less than $ 164,250. 11 USC 101(3)
What does "community claim" mean?
The term "community claim" means claim that arose before the commencement of the case concerning the debtor for which property of the kind specified in section 541(a)(2) of this title (i.e., property of the estate) is liable, whether or not there is any such property at the time of the commencement of the case.
Does current monthly income include amount paid by any entity other than the debtor (or in a joint case the debtor and the debtor's spouse), on a regular basis for the household expenses of the debtor or the debtor's dependents (and in a joint case the debtor's spouse if not otherwise a dependent)?
Yes. 11 US 101(10A)
Does current monthly income include amounts paid under the social security act?
No. 11 US 101(10A)(B)
When does the 6 month period for monthly income end?
Last day of the calendar month prior to filing the Petition as long as the schedule of income is filed at the same time as the Petition.
Who is a "disinterested person"?
broadly construed to disqualify anyone who might have slightest decree of interest or relationship with debtor that would color independent and impartial judgment
Can attorney who is related to the debtor client violate the "disinterested person" standard?
Yes, if the relationship would color independent and impartial judgment.
What qualifies as a 'domestic support obligation'?
Child support and spousal support, regardless of when it was ordered, or what it is technically 'called', i.e., spousal support labeled 'property settlement'.
What does "indenture" mean?
"indenture" means mortgage, deed of trust, or indenture, under which there is outstanding a security, other than a voting-trust certificate, constituting a claim against the debtor, a claim secured by a lien on any of the debtor's property, or an equity security of the debtor.
Define "individual with regular income"
It means an individual whose income is sufficiently stable and regular to enable such individual to make payments under a plan under chapter 13 of this title.
Who is an "insider" of an individual debtor?
(i) relative of the debtor or of a general partner of the debtor;
(ii) partnership in which the debtor is a general partner;
(iii) general partner of the debtor; or
(iv) corporation of which the debtor is a director, officer, or person in control.
Who is a "relative"?
The term "relative" means individual related by affinity or consanguinity within the third degree as determined by the common law, or individual in a step or adoptive relationship within such third degree. Your third-degree relatives include your great-grandparents, great-aunts, great-uncles, and first cousins.
Is the use of "or" exclusive? Meaning that does "black or white" mean only one or the other?
No, it is not exclusive. 11 USC 102.
If the statutes says "after notice and a haring", is a "hearing" rrequired?
No. 11 USC 102
What needs to be done for documents electronically filed that need original signature?
Documents that are electronically filed and require original signatures other than that of the Filing User must be maintained in paper form by the Filing User until 6 years after all time periods for
appeals expire. On request of the court, the Filing User must
provide original documents for review. LBR 5005.1
What documents require original signatures?
No idea. Best guess is that anything that requires a signature should have a real signature that should be saved for at least 6 years. Don't need to save my signatures though. LBR 5005.1.
What is clearing the cache and why do you do it?
In order for information to be displayed properly in ECF it is necessary to clear the "cache" or computer memory that is stored on your PC. Web browsers cache or store information about the web sites you visit directly to your PC. Caching is intended to increase the speed at which Internet pages are accessed. However, one side effect is that pages displayed from the cache may not be as new as pages available from the web. This means that you may not see updates that are made to ECF unless you clear the browser cache. The cache should be cleared frequently to avoid errors.
How do you clear the cache?
1. Open Internet Explorer
2. Select Tools from the menu options
3. Select Internet Options from the drop down menu
4. Click on the Delete Files button
5. Click OK on the warning message box (the warning box will disappear)
6. Click OK button to complete the process and return to your browser
Can a joint case be filed with anyone other than a spouse?
No. 11 USC 302.
What must the trustee do at the 341 hearing?
Prior to the conclusion of the meeting of creditors, the trustee shall orally examine the debtor to ensure that the debtor in a case under chapter 7 of this title is aware of--
(1) the potential consequences of seeking a discharge in bankruptcy, including the effects on credit history;
(2) the debtor's ability to file a petition under a different chapter of this title;
(3) the effect of receiving a discharge of debts under this title; and
(4) the effect of reaffirming a debt, including the debtor's knowledge of the provisions of section 524(d) of this title
Does the automatic stay stay criminal proceedings?
no. 11 USC 362(b)(1).
Does a bankruptcy filing stay the withholding, suspension, or restriction of a driver's license, a professional or occupational license, or a recreational license?
No. 11 USC 362(b)(2)(D)
Is there any type of medical obligation that is not stayed with the filing of the bankruptcy?
Yes, a medical support obligation under 42 USC 601 et. seq., which is when a parent is ordered to pay medical costs of a child pursuant to a domestic case. 11 USC 362(b)(2)(G)
Under what circumstances can a mortgage foreclosure be brought during the automatic stay? (Not asking how to lift the stay)
The commencement of any action by the Secretary of Housing and Urban Development to foreclose a mortgage or deed of trust in any case in which the mortgage or deed of trust held by the Secretary is insured or was formerly insured under the National Housing Act and covers property, or combinations of property, consisting of five or more living units. 11 USC 362(b)(8)
Is a governmental tax audit stayed by a bankruptcy filing?
No. 11 USC 632(b)(9)
May a lessor take possession of nonresidential real estate during the automatic stay?
Yes. Any act by a lessor to the debtor under a lease of nonresidential real property that has terminated by the expiration of the stated term of the lease before the commencement of or during a case under this title to obtain possession of such property; 11 USC 362(b)(10)
After the bankruptcy has been filed, under what circumstances can a creditor enforce a lien against a security interest in real property?
If in a prior bankruptcy, if the court entered an order that the debtor was involved in a scheme to delay, hinder, and defraud creditors by, for example, filing multiple bankruptcies, then the creditor can take action to enforce the lien. Debtor can ask for stay, though, based upon a change in circumstances. 11 USC (b)(20).

following entry of the order under subsection (d)(4) as to such real property in any prior case under this title, for a period of 2 years after the date of the entry of such an order, except that the debtor, in a subsequent case under this title, may move for relief from such order based upon changed circumstances or for other good cause shown, after notice and a hearing;

(4) with respect to a stay of an act against real property under subsection (a), by a creditor whose claim is secured by an interest in such real property, if the court finds that the filing of the petition was part of a scthat involved either--
(A) transfer of all or part ownership of, or other interest in, such real property without the consent of the secured creditor or court approval; or
(B) multiple bankruptcy filings affecting such real property.
When can a lessor evict a tenant of a residential property without notifying the bankruptcy court when the tenant is covered by the bankruptcy stay?
When the lessor has obtained before the date of the filing of the bankruptcy petition, a judgment for possession of such property against the debtor. 11 USC 362(b)(22)
If a lessor wants to evict a tenant of residential property based on endangerment of the property or illegal use of controlled substances on the property?
The lessor must file with the court, and serve upon the debtor, a certification under penalty of perjury that such an eviction action has been filed, or that the debtor, during the 30-day period preceding the date of the filing of the certification, has endangered property or illegally used or allowed to be used a controlled substance on the property. 11 USC 362(b)(23).
How long does the stay last?
Until the case is closed, dismissed, or until the property is no longer property of the bankruptcy estate. 11 USC 362(c).
Is lack of adequate protection of an interest in property of such party in interest grounds for lifting the stay?
Yes. 11 USC 362(d)(1).
If the debtor does not have any equity in the property, may a creditor with an interest in that property have the stay lifted?
Yes. 11 USC 362(d).
If a debtor has equity in residential real estate, when can a creditor have the stay lifted?
If payments are not being made within 90 days (or sooner if the court gets involved). 11 USC 362(d).
If a creditor files a motion to lift the stay, does the debtor have to take any action to prevent the lifting of the stay?
Yes, the stay is automatically lifted after 60 days if the debtor is an individual and does not take action to set a hearing. 11 USC 362(e).
On a motion to lift a stay, who has the burden of proof on the issue of the debtor's equity in the property?
The creditor. 11 USC 362(g)
On a motion to stay, who has the burden of proving every issue other than the issue of the debtor's equity in the property?
The debtor. 11 USC 362(g)
Does the debtor have to take timely action to do the things set forth in the statement of intentions?
Yes, unless the debtor wants to reaffirm and the creditor won't cooperate. 11 USC 362(h).
What are a debtor's remedies for a willful violation of the automatic stay?
Actual damages, including costs and attorney fees, punitive damages. 11 USC 362(k)
What are the debtor's remedies for a non-willful violation of the automatic stay?
Actual damages. 11 USC 362(k)
Does a bankruptcy filing stay the interception of a tax refund?
No. 11 USC(b)(2)(F)
If asset is co-owned, and otherwise not exempt, what is the co-owner entitled to in the sale?
Maybe nothing. Co-owner has right to purchase, but if the property isn't easily dividable, it could all go to the estate. 11 USC 363(i)
Can a utility company discontinue service if a bankruptcy is filed and no assurance of payment has been given?
Yes. Even if the debtor is up to date on payments, if assurance of payment is not made within 20 days of the order for relief, service may be discontinued. 11 USC 366.
Does the debtor have to give assurance of payment to utility company after filing for bankruptcy if no request was made by the utility company for such assurance?
Debtor doesn't have to give assurance unless it is requested. 11 USC 366.
Are domestic support obligations a priority claim?
Yes. First priority. 11 USC 507.
Are tax debts a priority claim?
Yes, they can be. 11 USC 507.
Are attorney fees a priority claim?
Yes. 11 USC 507.
If I file for bankruptcy and I owe $15,000 in wages to her for her work in the 180 days before filing for bankruptcy, does she have a priority claim?
Yes and no. She does, but the limit is $10,950 per individual or corporation. 11 USC 507.
Mike & Steph buy a new house and Steph rents her old house to Billy. Billy pays Steph a $3000 downpayment for renting the house. Steph files for divorce, and the trustee takes the $3000 that was sitting in her house rental bank account. Does Billy have a priority claim?
Yes and no. He has a priority claim of a maximum of $2425.
Mike owes Lindsay $10,000 in back wages and $10,000 in child support when he files for bankruptcy. Both assert priority claims. Is one priority stronger than the other?
Yes, domestic support obligations are the highest priority. 11 USC 507.
Billy injures Tammy in a DUI accident. Billy is drunk. Billy files for bankruptcy. Does Tammy have a priority claim?
Yes. 11 USC 507.
What type of proceedings are inherent in and fundamental to the administration of a bankruptcy case? It is a 4 letter non-dirty word. These ____ proceedings are subject to the jurisdiction of the bankruptcy court. Non-____ proceedings may be conducted outside the jurisdiction of the bankruptcy court.
core proceedings. Other matters are non-core proceedings. 28 usc 157
Can a bankruptcy judge make a final order in a non-core proceeding without the consent of the parties?
No. The judge has to have the consent of the parties to decide non-core proceedings. They act like special masters or magistrate judges though in that they submit proposed findings and conclusions and the dispositive orders are make by the district court. 28 usc 157.
What is the standard of review for an appeal of a core proceeding?
clearly erroneous. BR 8013.
Where is a core proceeding decision appealed to?
district court.28 usc 157 I think.
What is the standard of review for an appeal of a non-core proceeding?
de novo. 28 usc 157.
Does the fact that a state law is involved make it a non-core proceeding?
No. That state law is involved is not determinative of whether a proceeding is a core matter. 28 usc 157(b)(3).
Is the allowance of a tax claim a core or non-core proceeding?
Core.
Is a liquidation or estimation of pi or wrongful death claims against the estate for distribution purposes a core or non-core proceeding?
Non-core so that these claims are tried before a district judge. Most all other claims are core claims though.
are counterclaims by the estate against persons filing claims against the state core proceedings?
Yes.