New Bankruptcy Notice Provisions

(August 25th, 2005 under New Bankruptcy Law )
The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 will bring about many changes to the practice of bankruptcy law. It has also spread potential traps that could adversely affect debtors who are not careful about their record keeping. Under the new law, unless a debtor complies with stringent new notice provisions, creditors can take actions that could have resulted in penalties under the old bankruptcy code. Although the existing law requires debtors to notify their creditors of their bankruptcies, many debtors send notices to the addresses where they send their payments. There is no requirement, such as under the Federal Rules of Civil Procedure, that creditor notices be sent to any particular address. Among the provisions of the revised bankruptcy code that will go into effect on October 18, 2005, however, is a crucial change to the notice provisions imposed on debtors that requires debtors to send bankruptcy notices to a specific address designated by a creditor. In order for the more stringent notice requirements to apply, within the 90 days preceding the bankruptcy a creditor must have sent a debtor two communications listing the debtor's current account number and listing the address at which any bankruptcy notices are to be sent. For many creditors, the simplest means of providing the required notice would be to include it on their monthly statements. The notice requirements are in the new 11 U.S.C. ? 342(c)(2). Creditors have an incentive to avoid proper notice because under the new 11 U.S.C. ? 342(g), a court cannot impose a monetary penalty for violations of the automatic stay on a creditor who does not receive notice of the bankruptcy filing that complies with the new, heightened notice requirements. The law provides no guidelines for how prominent a notice must be. Thus, it is likely that many creditors will include the notice information in fine print on the backs of invoices or in some other similarly obscure manner in order to make it more difficult for debtors to comply with the new notice requirements. One caveat: ? 342(g) states that notice that does not comply with the new requirements "shall not be effective until such notice is brought to the attention of such creditor." Under current case law, actual notice of a bankruptcy proceeding can effectively bind a creditor even when the creditor has not received the required statutory notice. Thus, the new notice provisions may not afford complete protection against penalties for automatic stay violations for a creditor who acts after learning that a debtor is in bankruptcy. Time ? and litigation ? will tell how far the new notice provisions may go and whether a debtor's failure to comply with the new provisions could insulate creditors' claims from a bankruptcy proceeding altogether. Mac

This entry was posted on Thursday, August 25th, 2005 at 8:35 am and is filed under New Bankruptcy Law .


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