25 Oct

Important dates in Chapter 13 cases include; the date the Chapter 13 petition is filed, the date the first payment is due to the trustee, the date of the meeting of creditors, the last date creditors can file objections to confirmation, the confirmation date and the last date creditors can file proofs of claim.

When Chapter 13 debtors fully understand the importance of these dates, they are much more likely to feel in control of the Chapter 13 process, and are much more likely to succeed in completing their Chapter 13 Plan.

The date the Chapter 13 Petition is filed (the filing date) is important for several reasons.

  1. To determine whether the debtor is above or below the median income, all income from the six months prior to the month the petition is filed is averaged. If the filing date is the last day of October, income from April through September is counted. If the filing date is a day later, November 1, income from May through October counts. In some cases, this one day difference can make a huge difference in whether a person can file a Chapter 7 or Chapter 13, how much the monthly payments in a Chapter 13 need to be, and even whether the Chapter 13 can go for 3 years or 5 years.
  2. Unless Congress removes the requirement, debtors must file a credit counseling certificate with their petition. Some courts have held that the certificates must be dated prior to the filing date. Other courts allow the certificate to be dated the same day as the filing date.
  3. Pay advices for the 60 days prior to the filing date must be filed with the petition. If you get paid on Thursday, and file on Friday, you must include Thursdays pay advice, or the case could get dismissed.
  4. Most importantly, the Automatic Stay is imposed the moment the petition is filed. The Automatic Stay prevents creditors from taking any action against the debtor. This can be of great importance if there is a pending foreclosure. As a general rule, if the foreclosure sale takes place at 10:00 am on the date the petition is filed, the petition better have been filed prior to 10:00 that morning, or it will be too late to stop the foreclosure sale. Once the Automatic Stay is imposed, if a properly listed creditor contacts the debtor in an attempt to collect a debt, they are in violation of the Automatic Stay and they are subject to sanctions. These sanctions can include damages to the debtor plus legal fees.
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Peter Orville is a bankruptcy lawyer in Binghamton, located in the Southern Tier of New York. He is a member and New York co-chair of the National Association of Consumer Bankruptcy Attorneys.
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