Involuntary Bankruptcy Filings under the Bankruptcy Abuse Prevention, Consumer Protection Act

(September 28th, 2005 under New Bankruptcy Law )
Section 1234 of the Bankruptcy Abuse Prevention, Consumer Protection Act (BAPCPA) modifies 11 U.S.C. ? 303 to define eligibility requirements for a creditor to qualify to file an involuntary bankruptcy petition. A single creditor may file a petition for involuntary bankruptcy if the debtor has fewer than 12 unsecured creditors. Considering credit cards, utilities, and other normal household debts, most debtors will have more than 12 unsecured creditors. If a debtor has more than 12 creditors, then an involuntary petition requires joinder of three creditors. The amendment provides that for cases requiring at least three creditors, each such creditor must hold a claim that is not contingent as to liability and not the subject of a bona fide dispute "as to liability or amount." Such "noncontingent, undisputed" claims must total at least $12,300 more than any liens securing such claims. This amendment could make filing an involuntary petition more difficult because many claims can be disputed as to amount. 11 U.S.C. ? 303 has also been amended to give debtors remedies against involuntary filings made by creditors asserting false, fictitious, or fraudulent statements. Under the new provisions, Federal bankruptcy judges would have the authority to prohibit consumer reporting agencies from issuing a report containing any information relating to certain involuntary bankruptcy petitions the court has dismissed. Interestingly, the amendments to section 303 of the Bankruptcy Code are some of the few provisions of the BAPCPA which became effective on the date of enactment of the Act and apply to cases commenced under title 11 before, on, and after such date. Under the BAPCPA, debtors are charged with specific duties to file within seven days after an order for relief is entered in an involuntary case their most recent balance sheets, operating statements, cash flow statements and federal income tax returns. Failure to produce these documents requires dismissal of the bankruptcy case. In an involuntary case, in which the debtor did not intend to be a debtor in a bankruptcy case and therefore did not voluntarily file the bankruptcy petition, this requirement may provide an opportunity to get the involuntary petition dismissed from the outset. This could impact the effectiveness of involuntary Chapter 7 filings because, without the debtor's cooperation in providing these documents, the case could be dismissed. The new exemption caps affecting states that have homestead exemptions in excess of $125,000 (including Texas) could actually increase involuntary bankruptcy filings. Limiting the exemptions available in bankruptcy may encourage involuntary bankruptcies in states with larger homestead exemptions. Creditors take a risk in filing an involuntary petition. If the petition is not successful (and bankruptcy courts often dismiss or abstain from hearing the petition) the creditors may be liable for compensatory and punitive damages, as well as the debtor's attorneys fees and costs. See, e.g. In re ELRS Loss Mitigation, LLC, 325 B.R. 604 (Bankr. N.D. Okla., 2005) (Court awarded debtor fees and costs and dismissed involuntary bankruptcy as debtor was paying debts as they became due.) Leslie

This entry was posted on Wednesday, September 28th, 2005 at 10:28 am and is filed under New Bankruptcy Law .


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