FAQs

  • CO-SIGNER, My ex-spouse has filed bankruptcy. He/she has listed me as a co-signer on a scheduled debt. What can I do? Does my divorce decree protect me?

     If you are a co-obligor with your ex-spouse on a debt, the creditor can require the entire payment of that debt from you even though the divorce decree assigns the debt to your ex-spouse. Depending on the terms of your divorce decree, you may be able to have certain support obligations under it determined to be non-dischargeable by the bankruptcy court or in state court. You should seek legal advice for a thorough explanation of your rights and obligations in this area as soon as you find out that your ex-spouse has filed a bankruptcy.

  • Credit Counseling vs. Personal Financial Management, What Are the Differences?

    An individual debtor must complete TWO DIFFERENT CLASSES to obtain a discharge. The names for these courses are: 1) Credit Counseling; and 2) Personal Financial Management. The courses are different in two ways: (a) When the class must be taken; and (b) What type of individual debtor must take the class. If a bankruptcy case is filed jointly, each spouse must take both courses.

    CREDIT COUNSELING, Before Filing For Bankruptcy – The Bankruptcy Code ordinarily requires an individual debtor (not a business debtor) to complete an approved course in Credit Counseling within 180 days before filing a bankruptcy case. See list of courses approved by the U.S. Trustee (link is external). The course can be completed in person, over the internet, or by telephone, and the credit counseling service will provide a certificate that the course was completed.

     PERSONAL FINANCIAL MANAGEMENT, Very Soon After Filing for Bankruptcy - In order to obtain a discharge of debts, an individual debtor (not a business debtor) must complete an approved course in Personal Financial Management within 60 days after the 341(a) Meeting of Creditors. See list of courses approved by the U.S. Trustee. (link is external) The course can be completed in person, over the internet, or over the telephone, and the course provider will provide a Certificate of Completion.

     

  • CREDIT REPORT, How do I get a bankruptcy removed from my credit report?

    The Bankruptcy Court has no jurisdiction over credit reporting agencies. The Fair Credit Reporting Act, 6 U.S.C. Section 605, is the law that controls credit reporting agencies. The law states that credit reporting agencies may not report a bankruptcy case on a person's credit report after ten years from the date the bankruptcy case is filed. Other bad credit information is removed after seven years. The larger credit reporting agencies belong to an organization called the Associated Credit Bureaus. The policy of the Associated Credit Bureaus is to remove chapter 11 and chapter 13 cases from the credit report after seven years to encourage debtors to file under these chapters.  

    You may contact the Federal Trade Commission, Bureau of Consumer Protection  in Washington, D.C. by calling (202) 326-2222. This office can provide further information on reestablishing credit and addressing credit problems.  For information on credit practices, contact (202) 326-3224.http://www.ftc.gov/about-ftc/bureaus-offices/bureau-consumer-protection

  • DEBT, How do I know if a debt is secured, unsecured, priority or administrative so I can fill out my schedules correctly?

     A. Secured Debt

    A secured debt is a debt that is backed by property. A creditor whose debt is"secured" has a right to take property to satisfy a "secured debt." For example, most homes are burdened by a "secured
    debt." This means that the lender has the right to take the home if the borrower fails to make payments on the loan. Most people who buy new cars give the lender a "security interest" in the car. This means that the debt is a "secured debt" and that the lender can take the car if the borrower fails to make payments on the car loan.

    B. Unsecured Debt

    A debt is unsecured if you have simply promised to pay someone a sum of money at a particular time, and you have not pledged any real or personal property as collateral for that debt.

    C. Priority Debt

    A priority debt is a debt entitled to priority in payment, ahead of most other debts, in a bankruptcy case. A listing of priority debts is given, in general terms, in 11 U.S.C. § 507 of the Bankruptcy Code. Examples of priority debts are claims for domestic support obligations, some taxes, and wage claims of employees. If you have questions deciding which of your debts are entitled to priority status, you should consult an attorney.

    D. Administrative Debt

    An administrative debt is also a priority debt and is one created when someone provides goods or services to your bankruptcy estate. The best example of an administrative debt is the fees generated by attorneys and other authorized professionals in representing the bankruptcy estate.

  • DISCHARGE, Do I have to do anything else to receive my discharge?

     The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 includes several new bars to the granting of a discharge. For example, all individual debtors must complete an instructional course concerning personal financial managements, and submit a certification of completion. Chapter 13 debtors must certify that any domestic support obligations are current. In some circumstances, a case may be closed without the discharge being granted. If that happens, the debtor will have to pay a fee to reopen the case and file the missing documents to get the discharge.

  • DISCHARGE, Does every Debtor get discharged of every debt?

    A discharge is a court order that forgives a debtor of certain specific debts. The discharge order prohibits a creditor from attempting to collect from a debtor a debt that has been discharged. However, not all debts are dischargeable. Parties can file written requests (adversary complaints) to have the court determine if a debt is dischargeable.

    • Creditor, Trustee or US Trustee asks the Court to determine if there is a discharge
    • Some unsecured debts are not dischargeable because Congress has determined they are types of debts that should not be discharged because of public policy reasons. These debts are listed in Section 523 of the Bankruptcy Code.  Examples are:
      • Spousal and child support obligations;
      • Certain tax debts;
      • Most educational loans
      • Debts related to injuries or death caused by driving while intoxicated; and
      • Debts arising from fraudulent conduct.
    • It is also possible for a debtor to be denied a discharge of all unsecured debts if a debtor has not been honest, forthcoming, or cooperative in the bankruptcy case. These scenarios are listed in Section 727 of the Bankruptcy Code and usually involve the U.S. Trustee, a trustee, or a creditor filing a lawsuit in a chapter 7 bankruptcy case to determine that the debtor should be totally denied a discharge.
    • Debts that are secured by real or personal property are not dischargeable. For example, a creditor may be able to seize property even after a discharge is granted because the debtor has not kept up with payments. Even though the creditor may not collect on the unsecured portion of the debt, the property can still be foreclosed upon (residence, automobile, etc.).
    • Debtor asks the court to determine if a debt can be discharged -- Some creditors have obtained court judgments, and then filed a "lien" which can be used to sell property of the debtor. In some situations, a debtor may file a motion asking the court to remove such a lien. Also, a debtor may file an adversary proceeding asking the court to rule that other debts are dischargeable.
  • DISCHARGE, What debts are dischargeable?

     11 U.S.C. § 523 lists exceptions to discharge. In general, all other debts are dischargeable.

    Some debts listed in 11 U.S.C. § 523, such as those based on fraudulent conduct, embezzlement or willful and malicious injury to another, are discharged unless a complaint to deny discharge of that debt is timely filed with the bankruptcy court. Ordinarily, these complaints must be filed within sixty (60) days of the first date set for the meeting of creditors.

    Additionally, debts that were not listed on your bankruptcy schedules or that were incurred after you filed bankruptcy are generally not discharged.

  • DISCHARGE, What is a discharge?

     

    The discharge order is issued by the court and permanently prohibits creditors from taking action to collect dischargeable debts against the debtor personally; this does not prevent secured creditors from seizing collateral if payments are not kept up, or other creditors from pursuing property of the estate.

    Some debts are not dischargeable, and others may be found to be non-dischargeable depending on particular circumstances.

    In a chapter 7 case, the bankruptcy court will order that the debtor be discharged of all dischargeable debts once the time for filing complaints objecting to discharge has expired unless:

    a. the debtor is not an individual;
    b. a complaint objecting to the debtor's discharge has been filed; or
    c. the debtor failed to complete an instructional course concerning personal financial management;
    d. the debtor has a previous discharge within the past 8 years;
    e. the debtor has filed a waiver of discharge.

    In chapter 11 cases, if the debtor is an individual, a discharge must be granted by the Court after all payments are complete, or, at least, the amounts paid are not less than the amount that would have been paid under a chapter 7 liquidation; otherwise, the confirmation of a plan of reorganization discharges the debtor from dischargeable debts that arose before the date of the order of relief unless:

    a. the plan or order confirming plan provides otherwise; or
    b. the plan is a liquidating plan and the debtor would be denied a discharge in a chapter 7 case under 11 U.S.C. 727.

    In chapter 12 and chapter 13 cases, the court will order that the debtor is discharged of dischargeable debts after the debtor has completed all payments under the plan, all domestic support obligations are certified as current and has completed a financial management course, or prior to plan completion, after notice and hearing, if the requirements of 11 U.S.C. §§ 1228(b) or 1328(b) have been met.

    The granting of a discharge does not automatically result in the closing of a case. All contested matters, adversary proceedings, and appeals must be resolved and the appointed trustee or debtor-in-possession must file a final report and account and request entry of a final decree before the Clerk's Office will close the case.

  • DISCHARGE, What is the difference between a denial of discharge and a debt being non-dischargeable?

     Denial of a discharge applies to all debts of the debtor’s bankruptcy estate, while determination of non-dischargeability applies to a particular debt only. A request for denial of discharge is usually granted because the debtor has defrauded a creditor, concealed property of the estate, made a false oath, presented or used a false claim, refused to obey any lawful order of the court and other reasons contained in the Bankruptcy Code.

    On the other hand, non-dischargeability of a debt excepts a particular debt from the discharge. This means that if the debt is determined non-dischargeable the debtor is still obligated to that creditor.

  • DISCHARGE, What is the difference between a denial of discharge and a debt being non-dischargeable?

     Denial of a discharge applies to all debts of the debtor’s bankruptcy estate, while determination of non-dischargeability applies to a particular debt only. A request for denial of discharge is usually granted because the debtor has defrauded a creditor, concealed property of the estate, made a false oath, presented or used a false claim, refused to obey any lawful order of the court and other reasons contained in the Bankruptcy Code.

    On the other hand, non-dischargeability of a debt excepts a particular debt from the discharge. This means that if the debt is determined non-dischargeable the debtor is still obligated to that creditor.

  • Do I need an attorney to file a bankruptcy?

    Individuals are not required to have an attorney to file bankruptcy, although it is highly recommended. Corporations, partnerships and trusts must be represented by an attorney to file bankruptcy. Bankruptcy is an extremely technical area of law and many issues can be complicated such as what is considered exempt property, whether or not a debt can be discharged and whether or not the automatic stay applies. In addition, there are a substantial number of documents required to be filed to commence a case, many of which are also extremely technical in nature. An attorney can advise debtors on these issues. The staff at the Bankruptcy Clerk's office cannot give legal advice. If you have questions about filing for bankruptcy or preparing the bankruptcy paperwork, please seek the advice of counsel. If you cannot afford an attorney, please contact one of the following resources: (1) the RI Bar Association, which provides information on finding a lawyer at (401) 421-7799,www.ribar.com; (2) RI Legal Services at (800) 662-5034 or (401) 274-2652; or (3)the Volunteer Lawyer Program at (401) 421-7758.

    Pre-petition credit counseling from an approved agency is a requirement for filing bankruptcy. The list of authorized agencies for the state of Rhode Island is listed on the home page of this website.

  • Do I need photo identification?

    Effective March 1, 2009 - any person wishing to file a bankruptcy petition or adversary proceeding without an attorney (pro se), must appear in the Clerk’s office and provide photo identification, or the filer must have a power of attorney(and photo identification) authorizing them to file on behalf of another person. Please read the following notice for more information.

    Notice to Debtors Filing Bankruptcy Petition without an attorney (pro se Debtors)

  • Do I need to send a copy of the petition to anyone else?

    No, unless you fail to include a required creditor on the mailing list. The Clerk's office will notify all the creditors you have listed on your creditor mailing list of your bankruptcy filing as well as your case trustee and the United States Trustee, by mailing a written notice to them described in the above answer. For this reason, it is very important that you provide complete addresses, including city, state and zip code, for each creditor on your creditor list. If you later determine that you have missed including a required creditor, you must file a motion to amend the creditor list and submit a new disk with only the added creditors names and addresses, include the requiredmiscellaneous fee (cash or money order) and serve a copy of the Court’s Section 341 Meeting Notice to Creditors on the added creditors.

  • Do You Have the Filing Fee?

    Bankruptcy filings fees change periodically. Click here to view the latest fee information. Your filing fee must be paid by either money order (made payable to Clerk, US Bankruptcy Court) or in cash. If you do not have the full filing fee and wish to pay in installments, or if you wish to waive the filing fee entirely, see the detailed information located in Filing Fee Payment Options for necessary forms and instructions.

  • Does the Bankruptcy Court hold jury trials?

    Pursuant to 28 U.S.C. §157(e), a bankruptcy judge may conduct jury trial in bankruptcy proceedings where the right to a jury trial applies and all parties have consented.

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