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FAQs: After Filing Bankruptcy

  • Relief From The Automatic Stay, How Do Creditors File This?

    A) General Rule - In many situations a creditor must obtain a court order granting relief from the Automatic Stay to have the right to take action against a debtor or property of the estate. This is true regardless of what type of action a creditor has already filed against the debtor in another court, or if the creditor has started (but not completed) taking action to repossess property of the debtor. If a creditor does not obtain a court order, that creditor could be sanctioned (i.e., fined), and any action taken by that creditor may be void.

    B) Filing a Motion and Setting a Hearing Date -- A Motion for Relief from the Automatic Stay is commenced by filing the appropriate motion and setting the motion for a hearing date. To file a Motion for Relief from the Automatic Stay, the Local Bankruptcy Rules require parties to use mandatory forms. Click here for a list of F 4001-1M form motions. There are several different types of mandatory form motions. A creditor will pick the appropriate mandatory form motion based upon what the creditor is asking the court for permission to do (i.e., proceed against real property, proceed against personal property, continue with an unlawful detainer lawsuit in Superior Court, proceed with a state court lawsuit, etc.). Each motion must demonstrate “cause” for lifting the Automatic Stay, and shall be supported by admissible evidence. For example, if a creditor asserts a secured claim, the motion must contain admissible documents that assert a valid security interest and all documents that support an assertion of lack of adequate protection or a lack of equity in the relevant property.

    C) Filing Fee and Number of Copies - A Motion for Relief from the Automatic Stay requires a filing fee, see Fee Schedule. If the motion is filed in person at the intake window of the clerk’s office, a creditor must file one copy with the court (original and one extra copy). If a creditor also wants to leave with a “Filed” stamped copy of the motion, the creditor must bring a second copy. For all motions filed electronically via CM/ECF, the creditor must promptly deliver one copy of the motion to the judge’s chambers by mail or personal delivery.

    D) Serving the Motion and Notice of Motion - Remember to serve all parties required to be served by the Local Bankruptcy Rules and to complete the service within the time period required by those rules. Consult the CM/ECF Administrative Procedures regarding electronic notice and service.

    FAQ Type:
    After Filing Bankruptcy

    See Also:
    Hearing Date, How Do I Obtain One On My Motion And Provide Notice Of The Hearing?
    Motion And Notice Of Motion, What Is It And Must A Response Be Filed?
    Shortened Time (Ex Parte), How Can I Have A Motion Heard Like This?

  • Reopen A Bankruptcy Case, How Do I Do This And Is A Fee Required?

    A) Filing a Motion to Reopen - Even though a bankruptcy case is closed, a debtor, trustee, or creditor may want the court to hear motions and enter orders in that bankruptcy case. If so, it is necessary to file TWO MOTIONS. The First Motion is a Motion to Reopen Bankruptcy Case, which may or may not be set for hearing depending upon the particular judge. In most situations a filing fee will be required, and the fee will differ in a Chapter 7, 11, or 13 case. The judge will generally rule on whether to grant the Motion to Reopen before the judge will consider any motion you wish to file once the case is reopened.

    B) Filing the Underlying Motion or Certificate re Personal Financial Management - If the judge grants the Motion to Reopen the case, it is time to file the Second Motion. The Second Motion is often a motion to avoid a judgment lien or a motion to extend the time to file Form 23, Debtor's Certification of Completion of Course Concerning Personal Financial Management.

    If the purpose of reopening the bankruptcy case is to allow filing of the Certification of Completion of Instructional Course Concerning Personal Financial Management, attach Form 23 to the FIRST MOTION, as the judge may allow Form 23 to be filed without the debtor having to file a second motion and without conducting a second hearing.

    C) Exception to Needing to Reopen Bankruptcy Case - It is not necessary to file a Motion to Reopen the case in order to file an adversary proceeding pursuant to Bankruptcy Code Section 523(a)(3).

    FAQ Type:
    After Filing Bankruptcy

    See Also:
    Personal Financial Management Certificate, Do I Need To File This?

  • Shortened Time (Ex Parte), How Can I Have A Motion Heard Like This?

    Generally the Local Bankruptcy Rules require a hearing to be set on at least 21 days notice. Hearing dates on motions may be set sooner than 21 days if the moving party can establish a reason for the request. Refer to the Local Bankruptcy Rules, in particular Rule 9075-1. Three separate documents must be submitted to the court simultaneously.

    A) The first document to file is the "Application" to have a motion heard on shortened time (i.e., an Ex Parte Application) which must explain the reasons and must contain admissible evidence to support the need to have a motion heard on less than 21 days notice. File the Application and on the same day deliver one copy directly to the judge's chambers.

    B) The second document to file is the "Motion" that the party wants the judge to hear on shortened time. The motion must identify the ruling sought, and the motion must contain the legal grounds and admissible evidence for granting the motion. File the motion and on the same day deliver one copy, along with the Application, directly to the judge's chambers.

    C) The third document is a "Proposed Order" that the judge can sign to grant or deny the Application to have the motion heard on shortened time. Lodge the proposed order with the court and on the same day deliver one copy directly to the judge's chambers. If the order is not lodged electronically, the original and copies will be delivered to the clerk's office intake window. See form Order Shortening Time [Local Bankruptcy Rule 9075-1(b)].

    See Judge's Procedures page to find out if the judge has additional procedures for setting hearings on Ex Parte Applications. If the judge grants the Application, the court will contact you with a hearing date and instructions for providing notice of the hearing and for serving the motion.

    FAQ Type:
    After Filing Bankruptcy

    See Also:
    No Related FAQs

  • Telephonic Appearances/Tentative Rulings, What Are The Judges’ Procedures?

    Telephonic Appearances - Many judges allow attorneys who have filed a motion, response or other document related to a hearing, to appear by telephone. The procedures to follow are found in the "Judges" section of this website. However, there are many situations in which an appearance in court is required. Each judge has information posted on their webpage about appearing telephonically.  To see an individual judge's policy click here for the list of judges, select a judge then select Telephonic Instructions. 

    Tentative Rulings - Many judges post tentative rulings in advance of a hearing or conference. Judges vary on how far in advance these tentative rulings are posted and what information is provided in the tentative ruling. Tentative Rulings are posted on Court's website. 

    FAQ Type:
    After Filing Bankruptcy

    See Also:
    Attorney, Are All Debtors And Creditors Required To Have One?

  • Tenant/Lessee Filed For Bankruptcy, What Happens Now?

    The filing of a bankruptcy petition will generally stop (i.e., automatically stay) most actions (such as eviction proceedings or other actions for possession or damages) by a landlord against a tenant for the duration of the bankruptcy case. However, this also depends upon whether the lease was for residential property, commercial property, or personal property. For residential property it also depends upon whether or not an unlawful detainer proceeding was commenced or completed in Superior Court before the bankruptcy case was filed.

    A landlord may file a Motion for Relief from the Automatic Stay to reclaim the premises. If the motion is granted by the bankruptcy judge, the Automatic Stay will either be lifted or altered, thereby allowing the landlord to continue with a proceeding or action against the tenant, but only limited to recovery of possession of the premises.

    As this is a complex area which has been affected by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, it is recommended that legal advice be obtained from a bankruptcy attorney.

    FAQ Type:
    After Filing Bankruptcy

    See Also:
    Automatic Stay, What Is It And Does It Protect A Debtor From All Creditors?
    Relief From The Automatic Stay, How Do Creditors File This?

  • Trustee, Does Every Bankruptcy Case Have One?

    A trustee is automatically appointed in every Chapter 7 and Chapter 13 bankruptcy case.

    A trustee is not automatically appointed in a Chapter 11 bankruptcy case. Instead, the debtor acts as the “Debtor-in-Possession” and has many of the duties and rights that a trustee has. Creditors that need information about a Debtor-in-Possession should contact either the responsible officer of the debtor or the attorneys for the debtor. A trustee may be appointed if a debtor requests that one be appointed or another party files a motion and the court determines that a trustee should be in charge of managing the debtor’s affairs.

    FAQ Type:
    After Filing Bankruptcy

    See Also:
    No Related FAQs

  • Trustee, How Do I Find Out Who It Is In A Bankruptcy Case?

    A) “Notice of Bankruptcy, 341(a) Meeting, Deadlines” – This notice is mailed by the clerk’s office promptly after a bankruptcy case is filed. The notice will contain the name, address, and telephone number of the trustee.

    B) Electronic Docket (CM/ECF PACER) – The trustee is identified on the left side of the electronic docket for each bankruptcy case. Register for a CM/ECF PACER account.

    C) Mailing Lists at the End of Papers Filed With the Court – When a party files a motion or other documents with the court, the party is generally required to mail a copy to the trustee in the bankruptcy case. Therefore, the trustee’s name and address will be shown on this “Service List.”

    D) U.S. Trustee Website - Contact information for all trustees who serve in the Central District of California can be found on the website for U.S. Trustee, Region 16. This website will not list a particular bankruptcy case, but it should contain a trustee’s phone number which can be used for contact information.

    Chapter 7 Trustee Directory

    Chapter 12 Trustee Directory

    Chapter 13 Trustee Directory

    FAQ Type:
    After Filing Bankruptcy

    See Also:
    341(A) Meeting Of Creditors, What Is It And Who Must Attend?

  • Trustee, What Is Their Role In A Bankruptcy Case?

    Chapter 7 Bankruptcy Case – In a chapter 7 bankruptcy case, all of the debtor’s property belongs to the bankruptcy estate unless the court makes a ruling that certain property is no longer property of the estate, the trustee abandons property to the debtor, or the property is exempt under California law from collection by creditors. It is recommended to consult a bankruptcy attorney to determine what property is exempt. A trustee is appointed to take control of certain assets of the debtor, bring these assets into the estate, and sell or distribute these assets for the benefit of creditors. Some assets will remain with the debtor if these assets are determined to be exempt from distribution to creditors. A trustee can recover certain assets that were previously transferred and bring those assets into the bankruptcy estate. Neither a debtor nor any other person or business should use or transfer an asset that belongs to the bankruptcy estate unless there is an express court order or notice from the trustee.

    Chapter 11 Bankruptcy Case – If a trustee is appointed in a chapter 11 bankruptcy case, a trustee will manage the affairs of the debtor and make all decisions about property of the estate. In that scenario the trustee will perform many of the same roles as a trustee in a chapter 7 case, except different deadlines and procedures apply. The trustee has the right to propose a plan of reorganization.

    Chapter 13 Bankruptcy Case – In a chapter 13 bankruptcy case, all property remains property of the debtor unless the court orders otherwise. A trustee is appointed to collect payments, monitor activity in the case and to report to the court on how well a debtor is meeting its obligations. If a debtor is not meeting obligations, the trustee can ask the court to dismiss the bankruptcy case. If a debtor’s income rises, the trustee or a creditor can ask the court to increase amounts paid to creditors.

    FAQ Type:
    After Filing Bankruptcy

    See Also:
    No Related FAQs

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