I. Suggestions for Chapter 13
Debtors
The following
suggestions are provided to assist debtors filing for Chapter 13 in the United
States Bankruptcy Court for the Middle District of Florida, Orlando Division,
covering the following counties:
PETITION
A joint
petition may be filed by a husband and wife (11 U.S.C. ' 302).
Petitions must be accompanied by a service matrix listing all of the debtor's
creditors. All petitions filed by
attorneys must be filed electronically.
FEES
ATTORNEYS'
FEES
All attorney
and non-attorney petition preparer fees must be disclosed. The debtor's attorney
or petition preparer must sign a disclosure statement and complete the
certification on page two of the petition form (Bankruptcy Rule 2016(b) and 11
U.S.C. ' 110(h)).
Attorneys who
charge more than $2,500.00 for a case, more than $500.00 for each modification
of a plan after confirmation, or more than $75.00 in estimated expenses shall
submit an application to the court in accordance with the "Guidelines for
Compensation for Professional Services or Reimbursement of Expenses by Attorneys
for Chapter 13 Debtors" ("Chapter 13 Fee
Guidelines").
All Chapter 13
Fee applications shall be filed and served on the debtor and the Chapter 13
Trustee no later than 10 days prior to the confirmation hearing and notice shall
be provided to all interested parties that the fee application will be heard at
the confirmation hearing set in the Notice of Chapter 13 Bankruptcy Case,
Meeting of Creditors, Deadlines & Court=s Confirmation
Procedures.
If a case is
dismissed or converted prior to confirmation, and if the retainer agreement so
provides, debtor(s)'s attorney may request and receive fees from monies paid to
the Chapter 13 Trustee, without separate application to the court, but the total
fee, including any fees previously paid, may not exceed $2,000.00. ("Chapter 13 Fee Guidelines").
Unless a
request for fees is made upon the Chapter 13 Trustee along with a copy of the
retainer agreement, or a formal application to the court for fees is set for
hearing on the confirmation calendar, the Trustee will return all remaining
funds in the debtor's account directly to the debtor immediately following the
dismissal or conversion of a Chapter 13 case.
CHAPTER 13
FILING FEE
The debtor
must pay a filing fee in the amount of $194.00, PAYABLE TO THE U.S.
BANKRUPTCY COURT, which includes a $30.00
miscellaneous noticing fee.
PAYMENT OF
FILING FEE IN INSTALLMENTS
If the court
permits the debtor to pay the filing fee in installments, the entire filing fee
must be paid in full before the proposed plan can be confirmed. Failure to pay
the installment payments in a timely manner will result in a dismissal of the
case without further notice of the court.
No fees may be paid to a professional in connection with the case if
applying to pay filing fees in installments.
TRUSTEE'S
FEES AND COSTS
The Trustee
will retain a maximum of ten percent of all payments made under the confirmed
plan pursuant to 28 U.S.C. ' 586(e).
Therefore, the debtor must provide an additional ten percent as and for the
Trustee's fee over all proposed payments to creditors under the plan.
SCHEDULES AND STATEMENT OF FINANCIAL
AFFAIRS
The debtor may
file completed schedules and a statement of financial affairs with the petition,
or if a list of all creditors and their addresses is filed with the petition,
within 15 days following the filing of the petition (Bankruptcy Rule 1007(c)).
The failure to comply in a timely manner will result in the case being dismissed
(11 U.S.C. ' 1307(c)(1)). If the debtor is unable to meet this deadline and
requests an extension of time in which to file from the court, a copy must be
forwarded to the Trustee and all parties who have requested
notice.
The
information provided must be complete and accurate. Complete and current
addresses of all creditors must be included. The debtor is not protected against
a creditor who is not listed properly in the schedules, absent that creditor's
actual knowledge that the debtor has filed for bankruptcy (11 U.S.C.
' 523(a)(3)).
The debtor
must list all claimed exemptions in the schedules (Bankruptcy Rule 1007(b)) and
report all income. All expenses must be listed in either the form of payroll
deductions or as part of the debtor's estimated budget. The Trustee will examine
those expenses to determine whether they are reasonable and necessary and the
debtor must be prepared to justify each provision with supporting documentation.
THE PLAN
The plan must
provide for the submission of all or an adequate portion of the debtor's future
earnings or other income to the Trustee for its execution and must be completed
no later than sixty (60) months following the petition filing date (11 U.S.C.
' 1322,
1325).
The debtor
must report all delinquent taxes along with all other priority claims and
provide for their full payment. It is strongly suggested that the debtor contact
the appropriate taxing authority, prior to filing, to determine whether or not
taxes are due and owing, and provide for them accordingly in the plan. Failure
to do so will result in an unnecessary delay and a possible dismissal of the
case.
A plan may
provide for the curing of a default while the case is pending provided regular
payments are maintained through the plan and the last payment is due after the
date on which the final payment under the plan is due (11 U.S.C.
'1322
(b)(5)).
If the plan
proposes to cure a mortgage default pursuant to 11 U.S.C. ' 1322(b)(5), the debtor must provide for payment of property taxes
and insurance not paid by the secured creditor in the budget as monthly
expenses.
Further, the
plan must clearly state the arrearage amount claimed by the creditor and include
any costs and attorneys' fees incurred as a result of state court or other
proceedings, along with the proposed arrearage payment schedule. It is strongly
suggested that the debtor's attorney contact secured creditors, prior to filing,
to determine the total amount due.
The plan must
provide for the continuation of all monthly payments, including all regular
mortgage payments, taxes and insurance.
If the plan
does not provide for payments to a secured creditor, such creditor is granted in
rem stay relief to pursue available state court
remedies against any property which secures the creditor's claim, whether the
claim is listed as direct or surrendered.
If the debtor
seeks determination of valuation pursuant to 11 U.S.C. ' 506(a) and
Bankruptcy Rule 3012, such determination must be specified by checking off the
valuation section of the Local Plan Form. Any oral or written objections to such
determination must be raised at or before the 341 meeting of creditors. If no oral or written objections are
timely raised, the valuation specified in the plan will be binding upon the
effected creditor.
AMENDMENTS
There is an
additional $26.00 filing fee, payable to the U.S. Courts, for each amendment to
Schedules D, E, or F if creditors are being added or deleted, or classification
or amount is being changed. Therefore, it is important that the debtor carefully
review the schedules, prior to filing, to make certain all listed debt amounts
are accurate and all information provided is correct.
If it becomes
necessary to file an amendment, the debtor is directed to file an original with
the Clerk and furnish a copy to the Chapter 13 Trustee, the U.S. Trustee and any
other party affected by the amendment. A supplemental matrix must be filed with
the amendment in accordance with the Clerk's Instructions for Filing or
Modifying Schedules
PAYMENT UNDER THE
PLAN
The debtor
must begin making payments to the Trustee under the plan in accordance with the
Order Establishing Deadline for Making Payments, which will be NO LATER than 30
days following the filing date of the plan. If the debtor is not current at the
time of the meeting of creditors, the case may be dismissed without further
notice.
It is a good
idea for Debtor(s) who are not self-employed to submit to a Wage Deduction Order
to the court prior to the 341 meeting of creditors.
The proposed
monthly payment must be made in "good faith", representing the maximum amount
the debtor is able to afford based upon disposable income. Disposable income is
calculated by subtracting monthly expenses from monthly income. If the debtor's
income or expenses fluctuate from month to month, the debtor should determine
disposable income based upon yearly averages and list them accordingly in
Schedules I and J.
An additional
10% must be provided as the Trustee's fee and cost allowance over all
proposed payments to creditors under the plan (See 11 U.S.C.
' 1326(b)(2)).
For example, if the plan indicates the combined payment to all secured creditors
is $1000.00 per month, the debtor must add an additional 10% for the Trustee's
fee, or $100.00, for a total monthly payment of
$1100.00.
Secured
creditors must be provided for in the plan unless a motion to pay outside the
plan is filed and granted, followed by priority and unsecured claimants. Once
arrearage payments to secured creditors have been cured through the plan,
regular monthly payments will continue to be paid to the secured creditors under
the plan unless the Court previously agreed to allow the payment outside of the
plan.
Priority
creditors must be paid 100% through the plan (U.S.C. ' 1322(a)(2)). Non-dischargeable debts, such as support payments
which are in default, must also be paid in full through the plan (11 U.S.C.
'
1328(a)). Other non-dischargeable
unsecured debts, such as guaranteed student loans, are paid under the same pro
rata basis as other unsecured creditors.
Any unpaid balance on the non-dischargeable debts will survive the plan
and will remain the debtor’s post bankruptcy
obligation.
Allowed
unsecured creditors will be paid in full or pro rata, as permitted by the court,
depending upon the payment amount and term of the plan. All plans will provide
for pro rata distributions to allowed unsecured claimants. The minimum payment
to priority and allowed unsecured claimants cannot be less than the value of the
debtor's non-exempt property (11 U.S.C. ' 1325(a)(4)). The Trustee will object to any plan which does not
meet the "Chapter 7 liquidation test" and is for a period of less than 36 months
(11 U.S.C. ' 1325(b)(1)).
Until a claim
is denied or reduced by the court, a plan must provide for the amount as claimed
by the creditor. The debtor's attorney must examine all claims to determine
their accuracy and object to any claims that should not be paid.
DELINQUENCY AFTER CONFIRMATION OF
PLAN
If the debtor
fails to timely make any plan payment to the Chapter 13 Trustee, the Trustee may
serve a Motion to Dismiss upon the debtor and the debtor's attorney. The debtor
will have 21 days from the date of the Motion to make all payments then due
under the plan, including any payments that become due within the 21-day period.
Debtor(s) seeking to cure the delinquency must file a motion to modify the
confirmed plan within 21 days of the date of the Motion to Dismiss, or make
sufficient payments to be brought current.
If the debtor
is not current in the plan payments on the 21st day after the date of the Motion
to Dismiss for Non-Payment, the Trustee will submit to the Court a Proposed
Order Dismissing Case and the case will be dismissed without further notice or
hearing. Dismissal will be with prejudice to the debtor filing any bankruptcy
case for a period of 180 days from the entry of the order of dismissal. The
court will not extend these deadlines absent extraordinary
circumstances.
CREDITORS
A creditor may
oppose the plan by objection, with a copy provided to the Trustee, debtor and
debtor's counsel. The court has the discretion to confirm the plan without the
acceptance of the unsecured creditors if the plan meets the requirements of 11
U.S.C. '
1325.
The Trustee
will not make a distribution to unsecured creditors who have filed a claim until
the Order Confirming Plan is entered by the Court. Scheduled creditors will
receive claim forms in the mail and additional forms are available at the
Clerk's
MEETING OF CREDITORS AND CONFIRMATION
HEARING
A 341 meeting
of creditors will be scheduled between twenty and forty days after the case is
filed pursuant to 11 U.S.C. ' 341 and
Bankruptcy Rule 2003. A confirmation hearing will be held within two (2) months
after the Bar Date for filing Proofs of Claims.
The Trustee
may submit a proposed order dismissing the case if the debtor does not appear at
the 341 meeting or is not current in plan payments under the plan as originally
filed. The case may be dismissed without further notice or hearing. Dismissal
will be with prejudice to the debtor filing any bankruptcy case for a period of
180 days from entry of the Order of Dismissal.
The Trustee
will evaluate the debtor's schedules, statement of financial affairs and plan
and investigate the debtor's circumstances prior to the 341 meeting. Therefore,
it is strongly suggested all amendments be filed and sent to the Trustee in a
timely fashion to avoid unnecessary delays and potential
sanctions.
A plan is not
proposed in good faith if only nominal payments are proposed, or if the proposed
payments do not represent the debtor's reasonable best effort considering income
and essential expenses. It is also not in good faith to propose a plan payment
which is beyond the debtor's ability to pay.
If the plan,
or Amended plan is ready to be confirmed and all oral or written objections
timely raised are either withdrawn or settled by the parties, the Trustee may
cancel the confirmation hearing and submit a proposed Local Form "Order
Confirming Uncontested Chapter 13 Plan and Notice of Opportunity to Object to
Amended Plan".
DISTRIBUTION TO
CREDITORS
The Trustee
will commence disbursing payments to creditors provided for in the plan if the
following conditions are met: (1) The Debt is a regular monthly mortgage payment
or secured plan payment. Secured
arrearages and priority claims are NOT paid until after the Order Confirming
Plan is entered. (2) Creditors have filed their Proof of
Claims directly with the Clerk of the Bankruptcy Court and have mailed a copy to
the Chapter 13 Trustee. (3) The Debtor has provided for payment
of the secured debt in the current Chapter 13 Plan, and has made the first two
payments due under the plan.
The Trustee is
prohibited from making a distribution to unsecured creditors earlier than the
entry of the confirmation order.
It is the
responsibility of the debtor's attorney to ensure that payment pursuant to the
plan is consistent with Proofs of Claim filed by creditors. In the event a filed
claim conflicts with the confirmed plan, the plan must either be modified to
reflect the claim amount or an objection to the claim must be made and
sustained.
PLAN
MODIFICATION
Occasionally,
modification of the confirmed plan will become necessary. A modification must be
proposed in accordance with 11 U.S.C. ' 1329. The
debtor must move to modify the plan upon notice and
hearing.
Modifications
are not required to accommodate adjustable rate note payments. Changes in
regular monthly payments, including the new payment amount and its effective
date, must be noticed to the Trustee, in writing, by the affected creditor. If
the payment has increased, the debtor must remit the difference to the Trustee
plus the 10% Trustee fee. If the payment has decreased, the plan payment remains
the same. The difference will be applied toward curing the arrearage in a
shorter period of time.
DISMISSAL OR
CONVERSION
The debtor may
file a voluntary notice to dismiss at any time if the case had not been
previously converted to Chapter 13 (11 U.S.C. ' 1307(b), or
convert the case to a Chapter 7 at any time (11 U.S.C. ' 1307(a); See
also Local Rule 1019-1). The Trustee or any creditor may request dismissal of
the case or conversion to Chapter 7 orally at the confirmation hearing or by
written motion at any time (11 U.S.C. ' 1307(c)). The
debtor's failure to file required papers timely, failure to appear at a court
hearing, denial of confirmation, or default in payments pursuant to the Plan
will normally require either dismissal or
conversion.
The debtor
should be prepared to advise the Trustee at the 341 meeting or the court at the
confirmation hearing whether conversion or dismissal is preferred in the event
confirmation is denied. Dismissal will usually be with prejudice to the filing
of another bankruptcy petition until 180 days following entry of the order of
dismissal. A dismissal will automatically terminate the stay, permitting
creditors to proceed under state law (11 U.S.C. ' 362(c)(2)(B).
Conversion to
Chapter 7 does not terminate the automatic stay; however, the debtor may be
required to surrender all nonexempt assets (11 U.S.C. ' 521(4);
1306(b)). If the case is converted, the debtor must file all required reports
pursuant to Bankruptcy Rule 1019 and Local Rule 1019-1, and comply with the
instructions of the Chapter 7 Trustee assigned to the case. Any remaining filing
fee installment payments or Clerk's fees are due upon dismissal pursuant to
Local Rule and the fee must be paid by the
Debtor.
DEBTOR'S
PAYMENT
The debtor's
attorney is directed to advise the debtor that the initial proposed plan payment
must be remitted to the Trustee no later than thirty days from the filing of the
petition, not the plan.
The Trustee
will hold all plan payments prior to confirmation unless otherwise directed by
the court. All payments must be made by payroll deduction, cashier's check or
money order to:
LAURIE K. WEATHERFORD,
Trustee
POST OFFICE BOX 1103
PERSONAL CHECKS AND CASH WILL NOT BE
ACCEPTED.
ALL PAYMENTS IN THE FORM OF CASHIER’S
CHECK OR MONEY ORDERS
PAYROLL DEDUCTION ORDERS ARE STRONGLY
ENCOURAGED.
The
debtor's name and case number must be properly listed on all payments. The
Trustee will return any payment that does not comply with the above-mentioned
requirements and the debtor will not be credited for that
payment.
NOTICES
The debtor's
attorney is required to provide notice of Chapter 13 orders to all creditors.
Examples of such orders include but are not limited to orders on any motion
filed by the Debtor and orders of confirmed plan
modifications.
DEBTOR'S CONTINUING
DUTY
The debtor is
under a continuing duty to advise the Trustee, in writing, of any changes of
address, telephone number, or employment, and any emergency that would delay
payment to the Trustee (11 U.S.C. '
521(3)).
The Trustee
will immediately move to dismiss the case if the debtor fails to meet any term
of the plan, without written explanation (11 U.S.C. '
1307(c)(6)).
CHAPTER 13
WEBSITE
The Chapter 13
Trustee's website at www.ch13orl.com is provided as a courtesy and is not to be
construed as giving or attempting to give legal
advice.
DISCHARGE
The Trustee
will file a final report with the Clerk of the Court and a discharge will be
issued to the debtor BY THE CLERK OF THE BANKRUPTCY COURT in due course upon
completion of the plan.
LAURIE K.
WEATHERFORD
STANDING CHAPTER 13 TRUSTEE
MIDDLE DISTRICT OF
POST OFFICE BOX 3450
TELEPHONE: (407)
648-8841 FAX:
(407) 648-2665
HONORABLE ARTHUR B.
BRISKMAN
HONORABLE KAREN S.
JENNEMAN
UNITED STATES BANKRUPTCY COURT
TELEPHONE: (407)
648-6365
II.
Guidelines for Plan Modifications After Confirmation
Please adhere
to the following procedure when calculating a plan modification after
confirmation:
INITIAL
PAYMENT
1. Obtain a ledger
sheet from this
5. UNSECURED
CREDITORS remain the same as in the original plan.
6. PLEASE NOTE THAT THE TRUSTEE
CANNOT DISBURSE TO CREDITORS WHEN THE PLAN IS UNDERGOING
MODIFICATION. PLEASE DO NOT ASK THE
TRUSTEE TO DO SO.
7. If a modification has been approved by
the Court and an order has been entered, the Trustee’s
8. It is the responsibility of the MOVING PARTY to submit to the Bankruptcy Court the proposed order on modification.
Revised 7/6/05