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Creditors’ Rights In Bankruptcy
All too often, creditors get a bankruptcy notice and they assume they have neither rights nor alternatives with respect to their claim against the debtor. Not entirely true.
Creditors In Bankruptcy Are Entitled To:
- Share in any distribution from the bankruptcy estate according to the priority of their claim. Most unsecured, nonwage claims come low in the priority scheme, and may receive little or nothing.
- Be heard by the court in matters concerning the debtor’s plan (in chapters 11, 12 and 13), the liquidation of the debtor’s nonexempt assets and payments from the assets of the estate.
- Challenge an individual debtor’s right to a discharge or to discharge the creditor’s particular debt.
As A Creditor, What Should I Do Now?
- Cease any collection action. This includes telephone calls from creditors and bills or lawsuits that might be pending against the debtor, among others. The automatic stay protects the debtor and his or her property from all forms of collection during the bankruptcy. In Chapter 13, the stay also protects co-debtors on consumer debts.
- File a claim with the court. The notice of the bankruptcy sent by the court clerk tells you where to file a proof of claim and the deadline for doing so. Act promptly since deadlines are strictly enforced in the bankruptcy case. Attach a copy of any contracts or judgment concerning your claim, or summary of the claim, if supporting documents are voluminous, to the proof of claim form. Get the claim form online if the court did not send one to you. Does your claim have a priority for payment?
- Consider whether your claim is dischargeable. Certain kinds of claims are nondischargeable in an individual’s Chapter 7 bankruptcy case. Examples of nondischargeable claims are certain obligations arising in divorce, debts incurred by fraud or willful and malicious acts by the debtor, or damages arising from drunk driving. Consult a lawyer if your claim arguably falls in one of those categories where you have to file an adversary proceeding in the bankruptcy case to preserve your claim after bankruptcy. The complete list of debts not dischargeable in Chapter 7 is found in 11 U.S.C. 523.
- Determine whether your claim is secured by the debtor’s assets. Secured creditors have a lien giving them specific rights to the property that is the collateral for their claim. Most often, those rights are created by, and described in, a mortgage or deed of trust on real property, a security agreement on personal property, or a judgment lien. Secured creditors have the best chance of getting relief from the automatic stay or “adequate protection payments” to preserve a decline in the equity available to secure their claim. Read more about relief from stay.
- Share information with the trustee. If you suspect that the debtor’s schedules aren’t accurate, that assets are concealed or have been transferred, contact the trustee and provide any documents or facts that might help the trustee recover money for the estate, or challenge the debtor’s right to a discharge. Creditor vigilance is the best deterrent to abuse of the bankruptcy system. Creditors are entitled to question the debtor under oath about assets, liabilities and financial history at the first meeting of creditors or by separately scheduled examination under Rule 2004 of the Federal Rules of Bankruptcy Procedure.
- Monitor the progress of the case. Some bankruptcies are dismissed for the debtor’s failure to comply with the requirements of the code. When that happens, creditors are free to pursue collection according to state law. Sometimes cases originally classified as “no asset” cases become asset cases from which a dividend may be paid. Make sure the court has your current address until the case is closed so that you get a notice if there will be a dividend.
We encourage you to call 515-421-9068 or use our online contact form to schedule a free one-hour consultation with a lawyer who emphasizes on clear communication and cost-efficient solutions. We will review your situation and recommend an effective course of action.
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