Sample Final Warning Letter to Debtors by ooa17818

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									                  Important Deadline Information for Creditors

Important: There are many deadlines in bankruptcy cases that affect your rights
and responsibilities as a creditor. It is your responsibility to understand those
deadlines or the consequence may be that you lose your right to object to
something. Failing to meet these deadlines can have serious and negative effects.

This notice lists just a few of the most critical deadlines. However, deadlines may
vary depending on the chapter and type of case filed and current status of the case
or proceeding. This notice is solely to provide general procedural information and is
not to be relied on for a statement of all deadlines that apply in your particular case
or proceeding, nor should it be relied upon as complete information regarding your
responsibilities related to deadlines. It is not to be used as a substitute for reviewing
the applicable statutes, rules and court orders and obtaining competent legal advice
in your specific case.

Please note: Many deadlines for creditors are contained in the Notice of
Commencement of Case that is mailed shortly after the case is filed to all creditors
listed in the case at the time of mailing of the notice. If you did not receive a copy
of this notice, contact the attorney for the debtor for a copy. If you prefer, contact
the clerk’s office for information on how to obtain one from the court records. In
addition you should review all other notices and orders you receive in the case and
review the case docket carefully to determine if any deadlines apply to you.

DEADLINE FOR FILING PROOF OF CLAIMS: In an asset case, this deadline will
be stated in the Notice of Commencement of Case. If a claims deadline is not set in
a no asset case, if assets are later available, the court will enter an order setting a
claims bar deadline. A Proof of Claim is a signed statement describing a creditor's
claim. If a Proof of Claim form is not included with the notice of commencement of
case, you can use the Official Bankruptcy Claim Form. Claims not filed via CM/ECF
can be filed at any clerk's office location. To receive acknowledgment of receipt by
the clerk, enclose a copy of the claim and an adequate sized stamped self addressed
envelope. If the debtor is not represented by an attorney, you must serve copies of
the claim including all attachments, upon the debtor via U.S. Mail. See Local Rule
3002-1(E).

DEADLINE FOR FILING COMPLAINTS TO DETERMINE DISCHARGEABILITY
OF DEBTS If you believe that a debt owed to you is not dischargeable under the
Bankruptcy Code, please be aware that for some types of debts there is a deadline
for you to start a lawsuit by filing a complaint in the bankruptcy clerk's office. This
deadline can be found under the title "Deadline to File a Complaint to Determine
Dischargeability of Certain Debts" listed on the front side of the Notice of
Commencement of Case. The bankruptcy clerk's office must receive the complaint
and any required filing fee by that deadline. Writing a letter to the court or judge is
not sufficient. An adversary complaint must be filed in accordance with the
applicable rules. Other types of debts for which this deadline does not apply may
also require the filing of an adversary complaint to determine dischargeability. It is
your responsibility to determine if the debt owed you falls under the category that
requires you to file a complaint by the deadline for filing complaints to determine
dischargeability of debts.

DEADLINE FOR FILING COMPLAINTS OBJECTING TO DISCHARGE OF THE
DEBTOR: The debtor is seeking a discharge of most debts, which may include your
debt. A discharge means that you may never try to collect the debt from the debtor.
If you believe that the debtor is not entitled to receive a discharge under
Bankruptcy Code, you must start a lawsuit by filing a complaint by the "Deadline to
File a Complaint Objecting to Discharge of the Debtor" listed on the front side of the
Notice of Commencement of Case. The bankruptcy clerk's office must receive the
complaint and any required filing fee by that Deadline. Writing a letter to the court
or judge is not sufficient. An adversary complaint must be filed in accordance with
the applicable rules.

DEADLINE FOR OBJECTION TO EXEMPTIONS: The debtor is permitted by law to
keep certain property as exempt. Exempt property will not be sold and distributed
to creditors. The debtor must file a list of all property claimed as exempt. If you
believe that an exemption claimed by the debtor is not authorized by law, you may
file an objection to that exemption. The bankruptcy clerk's office must receive the
objections by the "Deadline to Object to Exemptions" listed on the front side of the
Notice of Commencement of Case.

The following pages provide general information about the discharge in bankruptcy.
These pages are an excerpt from the Administrative Office of the US Courts
publication. The entire publication can be found at the following link: "Bankruptcy
Basics"
Excerpt from the Administrative Office of the US Courts
publication "Bankruptcy Basics"




                                                                                                    10
The Discharge in                                          BANKRUPTCY?

Bankruptcy                                                A bankruptcy discharge releases the debtor
                                                          from personal liability for certain specified
The bankruptcy discharge varies depending                 types of debts. In other words, the debtor is no
on the type of case a debtor files: chapter 7,            longer legally required to pay any debts that
11, 12, or 13. Bankruptcy Basics attempts to              are discharged. The discharge is a permanent
answer some basic questions about the                     order prohibiting the creditors of the debtor
discharge available to individual debtors                 from taking any form of collection action on
under all four chapters including:                        discharged debts, including legal action and
                                                          communications with the debtor, such as
1. What is a discharge in bankruptcy?                     telephone calls, letters, and personal contacts.

2. When does the discharge occur?                         Although a debtor is not personally liable for
                                                          discharged debts, a valid lien (i.e., a charge
3. How does the debtor get a discharge?                   upon specific property to secure payment of a
                                                          debt) that has not been avoided (i.e., made
4. Are all the debtor’s debts discharged or               unenforceable) in the bankruptcy case will
only some?                                                remain after the bankruptcy case. Therefore,
                                                          a secured creditor may enforce the lien to
5. Does the debtor have a right to a discharge            recover the property secured by the lien.
or can creditors object to the discharge?
                                                          WHEN DOES THE DISCHARGE
6. Can the debtor receive a second discharge              OCCUR?
in a later case?
                                                          The timing of the discharge varies, depending
7. Can the discharge be revoked?                          on the chapter under which the case is filed. In
                                                          a chapter 7 (liquidation) case, for example, the
8. May the debtor pay a discharged debt after             court usually grants the discharge promptly on
the bankruptcy case has been concluded?                   expiration of the time fixed for filing a
                                                          complaint objecting to discharge and the time
9. What can the debtor do if a creditor                   fixed for filing a motion to dismiss the case
attempts to collect a discharged debt after the           for substantial abuse (60 days following the
case is concluded?                                        first date set for the 341 meeting). Typically,
                                                          this occurs about four months after the date
10. May an employer terminate a debtor’s                  the debtor files the petition with the clerk of
employment solely because the person was a                the bankruptcy court. In individual chapter 11
debtor or failed to repay a discharged debt?              cases, and in cases under chapter 12
                                                          (adjustment of debts of a family farmer or
                                                          fisherman) and 13 (adjustment of debts of an
                                                          individual with regular income), the court
                                                          generally grants the discharge as soon as
WHAT IS A DISCHARGE IN                                    practicable after the debtor completes all
Excerpt from the Administrative Office of the US Courts
publication "Bankruptcy Basics"




                                                                                                     11
payments under the plan. Since a chapter 12               required by the rules does not affect the
or chapter 13 plan may provide for payments               validity of the order granting the discharge.
to be made over three to five years, the
discharge typically occurs about four years               ARE ALL OF THE DEBTOR’S DEBTS
after the date of filing. The court may deny an           DISCHARGED OR ONLY SOME?
individual debtor’s discharge in a chapter 7 or
13 case if the debtor fails to complete “an               Not all debts are discharged. The debts
instructional course concerning financial                 discharged vary under each chapter of the
management.” The Bankruptcy Code provides                 Bankruptcy Code. Section 523(a) of the Code
limited exceptions to the “financial                      specifically excepts various categories of
management” requirement if the U.S. trustee               debts from the discharge granted to individual
or bankruptcy administrator determines there              debtors. Therefore, the debtor must still repay
are inadequate educational programs                       those debts after bankruptcy. Congress has
available, or if the debtor is disabled or                determined that these types of debts are not
incapacitated or on active military duty in a             dischargeable for public policy reasons (based
combat zone.                                              either on the nature of the debt or the fact that
                                                          the debts were incurred due to improper
HOW DOES THE DEBTOR GET A                                 behavior of the debtor, such as the debtor’s
DISCHARGE?                                                drunken driving).

Unless there is litigation involving objections           There are 19 categories of debt excepted from
to the discharge, the debtor will usually                 discharge under chapters 7, 11, and 12. A
automatically receive a discharge. The Federal            more limited list of exceptions applies to
Rules of Bankruptcy Procedure provide for                 cases under chapter 13.
the clerk of the bankruptcy court to mail a
copy of the order of discharge to all creditors,          Generally speaking, the exceptions to
the U.S. trustee, the trustee in the case, and            discharge apply automatically if the language
the trustee’s attorney, if any. The debtor and            prescribed by section 523(a) applies. The
the debtor’s attorney also receive copies of the          most common types of nondischargeable
discharge order. The notice, which is simply              debts are certain types of tax claims, debts not
a copy of the final order of discharge, is not            set forth by the debtor on the lists and
specific as to those debts determined by the              schedules the debtor must file with the court,
court to be non-dischargeable, i.e., not                  debts for spousal or child support or alimony,
covered by the discharge. The notice informs              debts for willful and malicious injuries to
creditors generally that the debts owed to                person or property, debts to governmental
them have been discharged and that they                   units for fines and penalties, debts for most
should not attempt any further collection.                government funded or guaranteed educational
They are cautioned in the notice that                     loans or benefit overpayments, debts for
continuing collection efforts could subject               personal injury caused by the debtor’s
them to punishment for contempt. Any                      operation of a motor vehicle while
inadvertent failure on the part of the clerk to           intoxicated, debts owed to certain tax-
send the debtor or any creditor a copy of the             advantaged retirement plans, and debts for
discharge order promptly within the time
Excerpt from the Administrative Office of the US Courts
publication "Bankruptcy Basics"




                                                                                                    12
certain condominium or cooperative housing
fees.



The types of debts described in sections                  DOES THE DEBTOR HAVE THE RIGHT
523(a)(2), (4) and(6) (obligations affected by            TO A DISCHARGE OR CAN
fraud or maliciousness) are not automatically             CREDITORS OBJECT TO THE
excepted from discharge. Creditors must ask               DISCHARGE?
the court to determine that these debts are
excepted from discharge. In the absence of an             In chapter 7 cases, the debtor does not have an
affirmative request by the creditor and the               absolute right to a discharge. An objection to
granting of the request by the court, the types           the debtor’s discharge may be filed by a
of debts set out in sections 523(a)(2), (4) and           creditor, by the trustee in the case, or by the
(6) will be discharged.                                   U.S. trustee. Creditors receive a notice shortly
                                                          after the case is filed that sets forth much
A slightly broader discharge of debts is                  important information, including the deadline
available to a debtor in a chapter 13 case than           for objecting to the discharge. To object to the
in a chapter 7 case. Debts dischargeable in a             debtor’s discharge, a creditor must file a
chapter 13, but not in chapter 7, include debts           complaint in the bankruptcy court before the
for willful and malicious injury to property,             deadline set out in the notice. Filing a
debts incurred to pay non-dischargeable tax               complaint starts a lawsuit referred to in
obligations, and debts arising from property              bankruptcy as an “adversary proceeding.”
settlements in divorce or separation
proceedings. Although a chapter 13 debtor                 The court may deny a chapter 7 discharge for
generally receives a discharge only after                 any of the reasons described in section 727(a)
completing all payments required by the                   of the Bankruptcy Code, including failure to
court-approved (i.e., “confirmed”) repayment              provide requested tax documents; failure to
plan, there are some limited circumstances                complete a course on personal financial
under which the debtor may request the court              management; transfer or concealment of
to grant a “hardship discharge” even though               property with intent to hinder, delay, or
the debtor has failed to complete plan                    defraud creditors; destruction or concealment
payments. Such a discharge is available only              of books or records; perjury and other
to a debtor whose failure to complete plan                fraudulent acts; failure to account for the loss
payments is due to circumstances beyond the               of assets; violation of a court order or an
debtor’s control. The scope of a chapter 13               earlier discharge in an earlier case
“hardship discharge” is similar to that in a              commenced within certain time frames
chapter 7 case with regard to the types of                (discussed below) before the date the petition
debts that are excepted from the discharge. A             was filed. If the issue of the debtor’s right to
hardship discharge also is available in chapter           a discharge goes to trial, the objecting party
12 if the failure to complete plan payments is            has the burden of proving all the facts
due to “circumstances for which the debtor                essential to the objection.
should not justly be held accountable.”
Excerpt from the Administrative Office of the US Courts
publication "Bankruptcy Basics"




                                                                                                    13
In chapter 12 and chapter 13 cases, the debtor            CAN THE DISCHARGE BE REVOKED?
is usually entitled to a discharge upon
completion of all payments under the plan. As             The court may revoke a discharge under
in chapter 7, however, discharge may not                  certain circumstances. For example, a trustee,
occur in chapter 13 if the debtor fails to                creditor, or the U.S. trustee may request that
complete a required course on personal                    the court revoke the debtor’s discharge in a
financial management. A debtor is also                    chapter 7 case based on allegations that the
ineligible for a discharge in chapter 13 if he or         debtor: obtained the discharge fraudulently;
she received a prior discharge in another case            failed to disclose the fact that he or she
commenced within time frames discussed the                acquired or became entitled to acquire
next paragraph. Unlike chapter 7, creditors do            property that would constitute property of the
not have standing to object to the discharge of           bankruptcy estate; committed one of several
a chapter 12 or chapter 13 debtor. Creditors              acts of impropriety described in section
can object to confirmation of the repayment               727(a)(6) of the Bankruptcy Code; or failed to
plan, but cannot object to the discharge if the           explain any misstatements discovered in an
debtor has completed making plan payments.                audit of the case or fails to provide documents
                                                          or information requested in an audit of the
CAN A DEBTOR RECEIVE A SECOND                             case. Typically, a request to revoke the
DISCHARGE IN A LATER CHAPTER 7                            debtor’s discharge must be filed within one
CASE?                                                     year of the discharge or, in some cases, before
                                                          the date that the case is closed. The court will
The court will deny a discharge in a later                decide whether such allegations are true and,
chapter 7 case if the debtor received a                   if so, whether to revoke the discharge.
discharge under chapter 7 or chapter 11 in a
case filed within eight years before the second           In a chapter 11, 12 and 13 cases, if
petition is filed. The court will also deny a             confirmation of a plan or the discharge is
chapter 7 discharge if the debtor previously              obtained through fraud, the court can revoke
received a discharge in a chapter 12 or chapter           the order of confirmation or discharge.
13 case filed within six years before the date
of the filing of the second case unless (1) the           MAY THE DEBTOR PAY A
debtor paid all “allowed unsecured” claims in             DISCHARGED DEBT AFTER THE
the earlier case in full, or (2) the debtor made          BANKRUPTCY CASE HAS BEEN
payments under the plan in the earlier case               CONCLUDED?
totaling at least 70 percent of the allowed
unsecured claims and the debtor’s plan was                A debtor who has received a discharge may
proposed in good faith and the payments                   voluntarily repay any discharged debt. A
represented the debtor’s best effort. A debtor            debtor may repay a discharged debt even
is ineligible for discharge under chapter 13 if           though it can no longer be legally enforced.
he or she received a prior discharge in a                 Sometimes a debtor agrees to repay a debt
chapter 7, 11, or 12 case filed four years                because it is owed to a family member or
before the current case or in a chapter 13 case           because it represents an obligation to an
filed two years before the current case.                  individual for whom the debtor’s reputation is
                                                          important, such as a family doctor.
Excerpt from the Administrative Office of the US Courts
publication "Bankruptcy Basics"




                                                                                            14
WHAT CAN THE DEBTOR DO IF A                               discrimination is based solely upon the
CREDITOR ATTEMPTS TO COLLECT                              bankruptcy filing.
A DISCHARGED DEBT AFTER THE
CASE IS CONCLUDED?

If a creditor attempts collection efforts on a
discharged debt, the debtor can file a motion
with the court, reporting the action and asking
that the case be reopened to address the
matter. The bankruptcy court will often do so
to ensure that the discharge is not violated.
The discharge constitutes a permanent
statutory injunction prohibiting creditors from
taking any action, including the filing of a
lawsuit, designed to collect a discharged debt.
A creditor can be sanctioned by the court for
violating the discharge injunction. The normal
sanction for violating the discharge injunction
is civil contempt, which is often punishable by
a fine.

CAN AN EMPLOYER TERMINATE A
DEBTOR’S EMPLOYMENT SOLELY
BECAUSE THE PERSON WAS A
DEBTOR OR FAILED TO PAY A
DISCHARGED DEBT?

The law provides express prohibitions against
discriminatory treatment of debtors by both
governmental units and private employers. A
governmental unit or private employer may
not discriminate against a person solely
because the person was a debtor, was
insolvent before or during the case, or has not
paid a debt that was discharged in the case.
The law prohibits the following forms of
governmental discrimination: terminating an
employee; discriminating with respect to
hiring; or denying, revoking, suspending, or
declining to renew a license, franchise, or
similar privilege. A private employer may not
discriminate with respect to employment if the

								
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