Emergency Bankruptcy Petition

November 21, 2013

An emergency bankruptcy petition is a three page petition with a “mailing matrix”—a list of creditor names and addresses. The naked petition and creditor list are filed with the bankruptcy court along with the necessary filing fee and evidence of completion of consumer credit counseling. The chief benefit of an emergency bankruptcy filing is that the automatic stay goes into effect immediately and stops all creditor collections. This is especially useful if the debtor arrives at his attorney’s office on the eve of a foreclosure sale.

To effectively stop a foreclosure sale, the creditor must have notice of the bankruptcy filing. The best way to do this is to fax a copy to the creditor (and/or foreclosure firm, attorney, foreclosure trustee, etc.) and call to confirm receipt. The reason that notice is so important is the distinction courts draw between actions that are “void” and those that are merely “voidable.” Some courts hold that creditor actions in violation of the automatic stay are void, period. Others find some actions voidable. Those later courts sometimes allow a foreclosure sale to stand in a Chapter 7 case. This may occur when the creditor did not have prior knowledge of the bankruptcy case (and is therefore not culpable for an intentional violation of the stay order) and the debtor intends to surrender the property. Obviously, if the foreclosure takes place, the debtor no longer owns the property and must vacate immediately.

After the emergency bankruptcy petition is filed with the bankruptcy court, the debtor has 14 days to file the completed bankruptcy paperwork, including all schedules. See Bankruptcy Rule 1007(c). If the completed bankruptcy petition is not filed with the bankruptcy court within 14 days after the emergency bankruptcy filing, the bankruptcy case could be dismissed.

One common problem with emergency petitions is gathering a complete list of creditors. While the debtor has 14 days after filing to identify assets, income, and expenses, the bankruptcy rules require that the debtor list all creditors (as well as collection agencies, co-debtors, interested parties, etc.) at the time the bankruptcy case is initially filed. Debtors filing emergency petitions are under duress and frequently forget creditors. Some legal commentators, including Judge Alan Jaroslovsky, a California bankruptcy court, have pointed out that the debtor’s bankruptcy papers are filed under oath and must contain the whole truth. In his open letter posted on the website for the US Bankruptcy Court for the Northern District of California, Jaroslovsky writes:

Whatever your attitude is toward the schedules, you should know that as far as I am concerned they are the sacred text of any bankruptcy filing. There is no excuse for them not being 100% accurate and complete. Disclosure must be made to a fault. The filing of false schedules is a federal felony, and I do not hesitate to recommend prosecution of anyone who knowingly files a false schedule.

Filing an emergency bankruptcy petition can stop creditors in their tracks, but it can also present potential problems for the debtor. If you are considering a bankruptcy filing to protect your property, consult with an experienced attorney at Fears Nachawati as early in the process as possible. As bankruptcy attorneys we can explain how the federal bankruptcy laws can help your family and identify any areas of concern. For more information and a free consultation, contact us at 1.866.705.7584 or send an email to fears@fnlawfirm.com.

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